Stepping into a constitutional controversy with deep roots in American history, along with major implications for today’s politics, the Supreme Court on Monday agreed to define when the President can act alone to fill vacant government posts.   The case of National Labor Relations Board v. Noel Canning (docket 12-1281) is due to be decided in the Court’s next Term.
The specific issue is the scope of the Constitution’s grant of presidential power to put an official temporarily into office without Senate approval – a power that arises when the Senate is not on hand to review that appointment.  Answering that could require the Court to define when the Senate, in a legal sense, goes into recess.
The issue goes as far back as recess appointments by George Washington, but it also is as new as the latest partisan jousting between President Obama and Senate Republicans over his appointment power.  The gridlock over Obama nominees has threatened to make one government agency – the NLRB – unable to function.
While the Court will be focusing on constitutional questions, the outcome has real potential for giving either the Senate or the White House real tactical advantages in the ongoing confirmation wars.  It could give a resistant Senate a chance to nearly take away the president’s recess appointment authority, or it could give the White House a way to get around filibuster-driven obstruction of nominees.
The NLRB, a special target of Senate GOP challenges, has lost two cases in federal appeals courts over the constitutionality of President Obama’s appointments of three of its members during a brief Senate recess in January of last year.  While those three have joined two unchallenged board members in continuing to decide labor-management feuds, virtually everything the board has done in the past eighteen months is under a constitutional cloud.
The board and the administration want the Court to rule that the President may fill government posts temporarily whenever the Senate has formally taken time off, and plans no real legislative activity, and may do so for any vacancy that has arisen at any point.
But the D.C. Circuit, in the specific decision that is now before the Court, ruled that the recess appointment power only exists when the Senate recesses at the end of each year’s session, and no other time, and exists only for vacancies that came up during such a recess, and those vacancies must be filled before that recess is over.  The court of appeals upheld a constitutional challenge to the three appointees in a case involving a labor dispute between the Teamsters Union and a Yakima, Washington, soft-drink bottling company, Noel Canning.
Noel Canning joined the government in urging the Court to rule on its case, but asked the Court to add another question: does the Senate have the power to block any presidential appointments by coming back every three days, during any recess, for pro forma meetings that do little or no legislative business and with only a single senator on hand to swiftly gavel the chamber into and out of session?  The Court agreed to add that question, implicitly accepting Noel Canning’s contention that it, too, is crucial to settling the constitutional power question.
The Circuit  Court ruling against the three board members’ appointments, the administration  argued to the Court, “would dramatically curtail the scope of the President’s  authority” to make appointments when the Senate is not on hand.    Both the Senate and  presidents have long accepted that the power exists whether or not the Senate  has completed an annual session and regardless of when the vacancies at issue  first arose, the petition contended.
Noel Canning,  however, countered that President Obama “did something that none of his  predecessors had ever before done: He attempted to make intrasession ‘recess’  appointments during a three-day break in Senate business.”

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Recommended Citation: Lyle Denniston, Court enters appointments battle, SCOTUSblog (Jun. 24, 2013, 10:01 AM), http://www.scotusblog.com/2013/06/court-enters-appointments-battle/