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From NPR News this is ALL THINGS CONSIDERED. I'm Audie Cornish.
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And I'm Melissa Block. Narrows is the keyword in two major rulings from the Supreme Court today. One narrows protections for patients and employees outside abortion clinics, the other narrows the president's power to fill top government positions. Both rulings were technically unanimous because all nine justices agreed on the bottom-line outcome, but as NPR's Nina Totenberg reports, the decisions also contained fiery disagreements.
NINA TOTENBERG, BYLINE: The Constitution says quote, "the president shall have the power to fill up all vacancies that may happen during the recess of the Senate." Since the nation's founding, presidents have made more than 650 of these recess appointments and many hundreds more to the military. But a fight between President Obama and Senate Republicans put recess appointments under a new lens.
Republicans, in order to prevent recess appointments during the Christmas holidays two years ago, held super short 30 second sessions once every three days. President Obama viewed these sessions as fakes, a legal fiction aimed only at preventing legitimate recess appointments. And so he went ahead and made several appointments to the National Labor Relations Board, which at the time, lacked decorum and was unable to conduct business. When the three appointees took their seats and the NLRB began issuing decisions, one of them was challenged in court. A federal appeals court sided with the challengers in a decision that made recess appointments practically impossible.
Today, in a decision written by Justice Stephen Breyer, the Supreme Court went halfway. It ruled that the three Obama appointments were unconstitutional but upheld the president's power to make recess appointments anytime the Senate is in recess for ten days or more. It's unlikely, however, that there will be such a ten day recess in the near future because the court said that since the Senate makes its own rules, even a 30 second session counts as legitimate so there was no recess during which President Obama could act. The courts for conservatives said that in their view, the recess appointment power is an anachronism that is no longer valid because with modern forms of communication and transportation, the Senate is always available on short notice to consider the president's nominations.
Many of the problems President Obama encountered in getting his nominees confirmed were eliminated this year when Senate Democrats voted to eliminate filibusters for most appointments, and three NLRB appointees were confirmed. But if Republicans take over the Senate next year, they will be able to block appointments at will - political science professor George Edwards of Texas A&M University.
GEORGE EDWARDS: We're going to see more of that, I think - particularly in times of polarized politics when it's more difficult for presidents to have their nominations confirmed. We are going to see less continuity of government, more positions remaining open.
TOTENBERG: Moreover as Edward notes. Without Senate confirmation, government boards like the NLRB could be essentially nullified, unable to operate. William Gould, former chairman of the NLRB, underlines that saying that any president facing a hostile Senate would face two choices.
WILLIAM GOULD: The Senate will be in a position to dictate to the president or the lights will go off.
TOTENBERG: Most agencies will continue to function without confirmed officeholders, but performance is greatly impaired according to people who've served in both Republican and Democratic administrations.
Clay Johnson who headed personnel management in the George W. Bush administration notes that top agency officials are the president's point man for accomplishing the president's objectives.
CLAY JOHNSON: And if the person's out of place, the implementation is not going to be what we citizens would want it to be. It's going to have to be, by definition, subpar.
TOTENBERG: NYU Law professor Sally Katzen, who served in a similar position in the Clinton administration, notes that by law when there's no confirmed head of an agency and no recess appointee to fill the job, a law called the Vacancies Act restricts who can fill in - only existing agency personnel, not anyone new.
SALLY KATZEN: Well, in practice, acting officials can't and don't really act. They do not have the authority, the security, the position to do the job. It's like a - you're a placeholder. You're treading water.
TOTENBERG: In a second important decision today, the High Court ruled on the question of what restrictions can be placed on protesters at abortion clinics. At issue, a Massachusetts' law creating a 35 foot buffer zone outside all abortion clinics in order to protect patients and staff. Fourteen years ago, the High Court upheld the use of floating buffer zones of eight feet. But Massachusetts found that didn't work and there was considerable violence at the clinics including two killings.
Today, all nine justices agreed that nonetheless, the flat 35 foot buffer zone violated the rights of the protesters. Chief Justice John Roberts writing for himself and the courts four liberals said that only the Boston clinic seemed to have real problems and that therefore a flat 35 foot buffer zone cut too widely.
American University professor Bill Yeoman served as a top Justice Department official for 26 years and supervised enforcement of laws dealing with abortion clinic violence.
BILL YEOMAN: What this means is that there will be revisiting of an awful lot of buffer zones around the country, and so it's going to be more difficult for people who operate clinics.
TOTENBERG: But he added, it quote, "could have been much worse." Indeed, the four justice conservative minority would have tolerated no buffer zone, saying it allows abortion-rights advocates to suppress the speech of their opponents. Nina Totenberg, NPR News, Washington.
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