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Broad limit on appointments urged

A Washington State business joined the Obama administration on Thursday in urging the Supreme Court to clarify when presidents can constitutionally fill government vacancies when the Senate is taking a recess, but asked the Court to rule in a way that would definitely scuttle the specific appointments that are at issue in the case.  The brief by Noel Canning, a soft-drink bottling company in Yakima, can be read here.

Last month, the administration and the National Labor Relations Board challenged in the Court a ruling in January by the D.C. Circuit that struck down President Obama’s 2012 appointments to the Board.  That filing argued that the decision “would dramatically curtail” the president’s appointments power.  The case is NLRB v. Noel Canning (docket 12-1281).

It is too late in the current Term for the Court to decide the case, but there does appear to be time for the Justices to make up their minds about granting review before the summer recess, scheduling it for hearing and decision in the Term that starts in October.  There has been no doubt that the Justices would eventually take on the dispute, which would lead the Court into a fundamental inquiry about constitutional meaning.

The administration wants the Court to rule that a president can fill a vacant government post with a temporary appointee when the Senate takes a recess, even if that is amid an annual session, and can make such an appointment at those times no matter when the vacancy arose.   The Circuit Court, however, ruled that a recess appointment can only be made when the Senate has taken a recess between its annual sessions, and the president can only fill a vacancy that actually arose during that kind of recess.

Noel Canning agreed Thursday that the Court should rule on those issues.  But, it argued, even if the Court were to rule in the president’s favor on those two points, the appointments President Obama made to the NLRB would be unconstitutional because he made them when the Senate was meeting every three days, so there was no recess of any kind at the time.

Thus, the company’s lawyers urged the Court to add a third issue to its review of the case: “Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”   That would restrict presidential options even further, because the Senate could make itself available — in a technical sense — by coming in every third day, even if it did no significant legislating in such a meeting, and thus keep the president from making any temporary appointments during those intervals.

The three temporary appointments that President Obama made to the NLRB in January of last year would still be invalid, the brief in opposition argued, even if the Court were to rule in favor of the government on the two points raised in the administration’s petition.

The two issues posed by the administration, the new brief said, “do not encompass the core issue of whether the President may make ‘recess’ appointments where, as here, the Senate is convening ‘sessions’ every three days.”   Only by answering that added question, the brief contended, will the Court actually address the legality of the NLRB appointments.

What the Court needs to do, the brief went on, is to invalidate not only those appointments, but nullify every decision that the NLRB has made since those appointees took their seats on January 4, 2012.

Noting that the government’s petition had argued that the D.C. Circuit’s ruling would make illegal “hundreds of recess appointments” made by many presidents, the Noel Canning brief said that the Court could avoid a wider impact for a ruling limiting presidential appointments by confining a decision to the one issue it suggested should be added to the case.

If the Court were concerned “about the consequences” of paring down the recess appointment power, it said, the Justices could simply rule that these three NLRB appointments were illegal because they were made when the Senate was holding a routine session every three days.

Arguing that that would be the narrowest way to decide this particular case, the Noel Canning filing said that it would be appropriate to keep the issue narrow because President Obama’s January 2012 appointments were absolutely unique in the nation’s history.  “It appears that, since the founding, no President has previously attempted to make recess appointments during a break in the Senate’s session of less than three days,” the brief said.


Recommended Citation: Lyle Denniston, Broad limit on appointments urged, SCOTUSblog (May. 23, 2013, 5:21 PM),