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Recess appointments defended

The Obama administration asked the Supreme Court on Thursday to restore the President’s power to fill vacancies in government posts when the Senate is out of town. The petition argued that the D.C. Circuit Court got it wrong in January in sharply curtailing that authority.  (The Circuit Court’s ruling — discussed in this earlier post — is attached as an appendix to the petition but also can be read here.)

The filing challenged both parts of the lower court ruling: that the President’s constitutional authority to make temporary appointments occurs only when the Senate is in recess at the end of an annual session, and that the only appointments allowed are those that occur during such an end-of-session recess.  If that ruling stands, the petition contended, it will shut down the President’s appointment power during the periods of Senate inactivity that account for much of the Senate’s annual sittings.  (The case is National Labor Relations Board v. Noel Canning, docket 12-1281.)

“That decision,” U.S. Solicitor General Donald B. Verrilli, Jr., told the Court, “repudiates understandings of the Recess Appointments Clause that have been maintained and relied on by the Executive for most of the Nation’s history.  The limitations imposed by the court of appeals would render many of the recess appointments since the Second World War unconstitutional.”  Aside from the constitutional dimensions of the case, it also has the potential to insulate Presidents from procedural tactics in the Senate — including minority-led filibusters — that seek to frustrate White House plans to fill government vacancies.

It is too late for the Court to act finally on the new appeal during the current Term, unless the Justices moved with highly unusual speed.  That means that the case — if, as expected, it granted review — would go over to the Court’s next Term, starting in October.

The Circuit Court’s decision nullified three appointments that President Obama had made to the NLRB in January of last year.  The Senate was out of town for a three-week period after the opening of a new session in 2012.  The appeals court said that exceeded the constitutional limits under the Recess Appointments Clause.

The new petition argued that the limitations threaten “a significant disruption of the federal government’s operations — including, most immediately, those of the National Labor Relations Board.  The decision calls into question every final decision of the Board since January 4, 2012. And, because many of the Board’s members have been recess-appointed during the past decade, it could also place earlier orders in jeopardy…. The potential effects of the decision are limited by neither time nor geography.”

Moreover, the filing contended, “those effects can also be expected to extend to a wider range of federal agencies and offices,” because challenges to other agency actions can be pursued in the D.C. Circuit.  “If the decision below is allowed to stand, almost any federal officer who received a recess appointment during an intra-session recess, or who was appointed to fill a vacancy that did not first arise during the recess in which the appointment was made, could have his actions challenged in the D.C. Circuit on the ground that his appointment was unconstitutional and his official actions were ultra vires.”

The NLRB has often been the target of conservative opposition, and attempts to fill vacant Board seats have often been blocked by Senate filibusters.  The Board frequently has been unable to do its work because it did not have a sufficient number of members at work to constitute a quorum of three.  The Circuit Court ruled in a routine labor relations dispute, involving a soft-drink bottling company in Yakima, Washington, named Noel Canning, and its dealings with Teamsters Union Local 760.  The Board had ruled, with the three temporary appointments joining two other members already sitting, in favor of the union complaint that Noel Canning’s management had refused to implement an agreement that they had on contract terms.  In challenging that before the D.C. Circuit. Noel Canning contested the constitutionality of the recess appointments of the three members.

Another case now working its way through lower courts involves a challenge to President Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau — another target of conservative opposition. Cordray got his appointment on the same day that the three NLRB appointees were named.

Under the Constitution, a recess appointee can continue in office — unless confirmed by the Senate in the meantime — only until the end of the next Senate session.


Recommended Citation: Lyle Denniston, Recess appointments defended, SCOTUSblog (Apr. 25, 2013, 2:55 PM),