When one branch of government routinely abuses its constitutional power in order to prevent another from functioning, the Supreme Court is expected to take notice and stop the abuse. Unfortunately the court failed to do so Thursday in an important balance-of-power case, raising the prospect that President Barack Obama and his successors could have trouble making necessary appointments to executive posts as the nation's politics become more sharply polarized.
The court invalidated a series of appointments Obama made to the National Labor Relations Board in 2012, at a time when Republicans were blocking all nominations to the board, regardless of merit, to prevent pro-union decisions. Obama had erred, the court said, by declaring the Senate in recess at a time when it was holding short pro forma sessions every three days when nearly all members were on vacation and no real business was being transacted. Though Article 2 of the Constitution gives the president power to make recess appointments, the unanimous opinion of the court was that these pro forma sessions did not constitute a recess because "the Senate is in session when it says it is," as long as it is capable of conducting business.
This view is willfully blind to the real purpose of the pro forma sessions, which were held solely to thwart the president from making recess appointments. No real legislating can take place when virtually all members are out of town as the Senate's official website says, "no business is conducted at these sessions." The fact that during one session the presiding officer rubber-stamped a payroll tax deal that had been reached the week before cited by the court as proof of real business doesn't change what everyone in Washington knew was really going on.