Over the weekend, President Obama  announced his intention to fill 15 positions in his Administration using the recess appointment power given to him by Article II of the Constitution, which gives the President the power, while the Senate is in recess,  to fill vacant positions in the Executive and Judicial branches that are otherwise subject to Senate confirmation.   In making this announcement, President Obama explained that the move was needed because Republicans in the Senate have engaged in unprecedented obstructionism in delaying the confirmation of his nominees, preventing key government work from getting done.  Among the positions being filled by recess appointments are two long-standing vacancies on the National Labor Relations Board (NLRB).

Predictably, Republicans have criticized the recess appointments but what they apparently did not notice is that Chief Justice John Roberts himself suggested it last week.  Last Tuesday, the Supreme Court heard oral argument in New Process Steel v. NLRB, a case asking whether the NLRB has the authority to operate when only two of its five Board positions are filled. The question is a critical one, because the NLRB – whose members are subject to Senate confirmation – currently has three vacancies.  (Think Progress reports that if the Court rules against the NLRB, more than 600 cases it has already decided could be thrown out.)

During oral argument, Deputy Solicitor General Neal Katyal partly attributed the vacancies on the NLRB to obstructionism by Senate Republicans, which prompted the Chief Justice to ask:
And the recess appointment power doesn’t work why?
We couldn’t have said it better ourselves.  Nor, apparently, could President Obama.

Just four days later, the President announced he was making the recess appointments.  In addition to filling two of the NLRB vacancies, the recess appointments will also fill long-standing vacancies in the Departments of Treasury, Commerce, and Homeland Security and in the Office of the U.S. Trade Representative, as well as on the Farm Credit Administration Board and the Equal Employment Opportunity Commission.

Thanks for the tip, Chief Justice Roberts.