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The President’s powers case, made simple

On Monday, July 15, the blog will begin publishing a symposium on National Labor Relations Board v. Noel Canning (docket 12-1281), one of the most important constitutional cases to go before the Supreme Court in the new Term starting in October.  It provides a test of presidential authority to appoint individuals to government positions when the Senate is not available to consider them.  This post explains, in non-legal terms, how that case arose, and discusses its implications.


From time to time in its history, the Supreme Court is drawn into a controversy that goes to the heart of the division of powers among the branches of the national government.   With its power to interpret the meaning of the Constitution, exercised since 1803, the Court is in a position to overrule the actions of the other two branches of government.  Overruling Congress happens far more often than overruling the President, but that, too, can happen.  The Court will soon be considering whether to do that again in a case of deep significance for President Obama, and for his successors in the White House.

Perhaps the most famous Supreme Court decision rebuffing a President was the 1952 decision finding that President Harry Truman did not have the power to seize control of the nation’s steel mills to make sure that they continued to operate during a labor dispute in the midst of the Korean war.  President George W. Bush was the most recent Chief Executive to be thwarted by the Court, in a 2006 ruling striking down his order creating military tribunals to try terrorism war crimes cases.

As those two cases show, competing claims to government power can grow out of historic events, immediately demonstrating that much is at stake.  But they also can grow out of mundane events, of interest in the beginning only to those who are directly involved, with little hint that history is in the making.

The case of National Labor Relations Board v. Noel Canning, coming up for a hearing in the Supreme Court later this year, was of the ordinary kind, but has since grown grandly in importance.

It goes back to December 2010, when a soft-drink bottling company in Yakima, Washington, named Noel Canning, was feuding with the Teamsters Union’s Local 760, over how to implement a forty-cents-an-hour pay raise that the two sides had accepted as part of a new union contract.

The union complained to the National Labor Relations Board that Noel Canning’s management had refused to abide by their agreement.  That led ultimately to a ruling by the Board that the company had committed an unfair labor practice, since federal labor law requires the parties to a written agreement to carry it out.

The NLRB was created by Congress in 1935 to try to promote labor peace by encouraging companies and unions to bargain over their workers’ pay and other benefits.  Then, business interests resisted the creation of the Board; they challenged its constitutionality, but the Supreme Court upheld the law in 1937 — a major victory for President Franklin Roosevelt and the “New Deal” Congress after a string of constitutional setbacks in the Court.

The Board decides thousands of cases like the Noel Canning dispute.  For labor unions across the country, as many of them have lost members and their bargaining power has diminished, the Board has remained a key ally.  But for managers of many businesses, the Board has long been seen to be too pro-union.

The Board operates through a complex set of procedures that start with actions by regional officials of the Board, with the cases working their way up to final rulings by a five-member Board.   The agency has long been in the habit of allowing three of its members to rule on a case by delegating authority.

Under a decision by the Supreme Court three years ago, however, the Board and any panel of members may not exercise normal functions if the Board’s membership falls below three.   Under ordinary circumstances, when a vacancy occurs on the Board, a President chooses someone to fill it, and the Senate decides whether to approve that nominee.  That is the process dictated by the Constitution, and Congress applied that process to NLRB appointments.

But, in recent years, ordinary circumstances have not prevailed: the Board has been caught up in the ongoing political gridlock that is now a prominent feature of the process of Senate action on presidential appointees, to courts and to federal agencies.  Because the Board has a lot of adversaries in the business community, it has also developed a number of adversaries among Republican lawmakers.

With the requirement that the Board always have three approved members, the Board’s challengers have found a way to try to stall its functioning.   As a result, President Obama has been stymied in his efforts to name new Board members when the five-year terms of members expired.

In January of last year, the Board’s membership dropped to two, and at that point the Board lacked a quorum to operate.   The President on January 4 chose three new members to sit on the Board, but he was able to provide only temporary appointments.  The Board, though, was back in operation, and one of the first cases to come before it was the Noel Canning dispute over the forty-cents-an-hour wage increase for its workers.   And it is at that point that the constitutional dispute first arose, creating the case that would go to the Supreme Court.

The President chose Sharon Block, Terence F. Flynn, and Richard F. Griffin to fill vacancies and to raise the Board membership back up to five (along with the two sitting, and Senate-approved, members — Mark G. Pearce and Brian Hayes).   However, Block, Flynn, and Griffin were given what are called “recess appointments,” because the Senate was not in session when the President appointed them.   Such an appointee can serve only until the end of the next session of the Senate, unless the Senate in the meantime approves.

The Constitution, from its very beginning in 1789, has included in Article II dealing with the presidency the authority “to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”  The Noel Canning case asks the Supreme Court to settle when the Senate is in recess, and when vacancies “happen” so that the President can fill them.

The Recess Appointments Clause in the Constitution was vital, in the national government’s early years, because travel from one place to another was very difficult, and the Senate might not always be in Washington and thus able to act on presidential appointments, and yet the government could not function with official positions vacant.  There is no dispute that the clause is still necessary, even though travel is much easier these days, but the Senate does take recesses and so might not be available to act.

But there is deep disagreement about when the Senate is in recess, and when the temporary appointment powers of the President thus become available.

The D.C. Circuit Court — the main federal appeals court with the power to review decisions of the NLRB — ruled on those issues in the Noel Canning case.  It noted at the outset of its opinion that “this appears to be a routine review of a decision” of the Board.  It actually rejected two legal arguments (based on federal and state laws) that Noel Canning’s management raised against the Board’s order, before getting to the constitutional challenges.

The Circuit Court decided those challenges this way:  first, the President can only make a “recess appointment” when the Senate is out of town in the interval between its annual sessions, and not when it is out of town at times during an annual meeting; and, second, that the only vacancies in government positions that the President can fill by such appointments are those that have opened up during such an annual recess.

Because the appointments of Block, Flynn, and Griffin did not satisfy either of those conclusions, the Circuit Court ruled that their selection was unconstitutional, and thus the Board was back down to two members and did not have the authority to decide the Noel Canning case.   “The Board had no quorum,” the Circuit Court said simply, “and its order is void.”

President Obama’s lawyers in the Justice Department, and the Board’s own legal staff, joined in taking the case to the Supreme Court in April, arguing that the appeals court ruling ran counter to decades of actual use of the presidential appointment power, and raised a constitutional cloud over the NLRB’s very capacity to operate.   A month later, both Noel Canning’s management and the Teamsters’ Local 760 agreed that the Supreme Court should decide the constitutional dispute.

Noel Canning, however, said it would not be enough if the Court gave answers only to the two issues raised by the NLRB: whether the only recess that counts is the one between sessions, and when do vacancies “happen” for the President to fill.  The Court, according to the company, should also answer whether the Senate is ever in recess when it is coming back to town in what are called “pro forma” sessions.  That is the kind of meeting the Senate was conducting every three days in January 2012, so, the company insisted, it was not in a “recess” when President Obama made the three Board appointments on the fourth of that month.

On June 24, in one of the last actions of its 2012-2013 Term, the Supreme Court agreed to rule on the two questions raised by the government, but it also said it would take on the third issue posed by Noel Canning.   After the Court begins a new Term on October 7, the case will be heard in a public session, but that date has not yet been set.  A final decision is expected in the following months — more likely, sometime in 2014.

Recommended Citation: Lyle Denniston, The President’s powers case, made simple, SCOTUSblog (Jul. 11, 2013, 12:29 PM),