Breaking News

Argument preview: The nomination wars

At 10 a.m. Monday, the Supreme Court will hold ninety minutes of oral argument on a constitutional controversy arising out of gridlock in the Senate over presidential appointments.  In the case of National Labor Relations Board v. Noel Canning, arguing for the Board and in favor of presidential powers will be U.S. Solicitor General Donald B. Verrilli,, Jr., with forty-five minutes   The business firm involved in the case will be represented by Noel J. Francisco of the Washington office of the Jones Day law firm, with thirty minutes of time.  Representing the Republican members of the Senate, as amici, with fifteen minutes of time, will be Miguel A. Estrada of the Washington office of the Gibson, Dunn & Crutcher law firm.


A provision that has been in the Constitution since its very beginning, put there merely as a matter of eighteenth-century practical convenience, is at the center of what has come close to being a constitutional crisis in the twenty-first-century federal government.  Brought on by the deep partisan divide in national politics, recurring battles in the Senate over presidential appointments to government offices at times have threatened the very ability of some agencies to function.  The constitutional implications of that fight are now before the Supreme Court.

At issue in a case growing out of a routine labor dispute at a soft-drink bottling plant in Yakima, Washington, is this provision in the Constitution’s Article II, dealing with presidential powers: “The President shall have power 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.”

That is an exception to the normal process dictated by Article II: the president nominates individuals to be “officers of the United States,” but they cannot even enter the job unless the Senate has given its approval, through “advice and consent.”

The Founders adopted the exception because, in a day when travel was extremely difficult, there would be times when the Senate would not be able to assemble to consider an appointment to a position that had become vacant.  It was written to assure that government agencies could continue to operate in the interim.

The presidential appointees named that way hold their jobs only temporarily.  If the president does not send their names back to the Senate, using the normal process, they must surrender the job after serving for a specified period.

In recent years, when presidents have been frustrated by Senate opposition, inaction, or foot-dragging, they have used this “recess appointment” power to fill vacancies — and not just to lower-ranking positions, like members of the National Labor Relations Board.  Even some Supreme Court Justices have gone to the bench with — in the beginning — only a recess appointment.   The same has been true for some members of presidential cabinets.

The slowdowns in the nomination process in the Senate have led presidents to turn more often to their recess appointment authority, and that has been countered by the opposition in Congress seeking to put up obstacles to the use of that power — like making sure that the Senate is technically never unavailable.

Lurking in the background of this case is the seemingly unending controversy over the Senate’s filibuster rule, and the role that it has played increasingly in causing Senate procedures — including the appointments process — to grind to a halt, contributing to partisan gridlock.   A constitutional challenge on that issue is now unfolding in lower courts, and is not directly at issue before the Court in the Noel Canning case.

Predictably, perhaps, the jousting over recess appointments has now become a constitutional controversy for the Supreme Court to sort out, since no one else in government can declare just what the Recess Appointments Clause actually means.  Indeed, the case now before the Court involves questions about the meaning of these key words in the clause: “vacancies,” “may happen,” “during,” and “the recess.”

The Justice Department put two questions before the Court:  may the president make a recess appointment when the Senate takes a recess interrupting its annual sessions, or is that option open only at the end of each such session; and may the president fill vacancies that occurred at any time, or only those that arose during the recess when an appointment to that post is made.   The U.S. Court of Appeals for the D.C. Circuit ruled that appointments may be made only during the recesses between annual session, and only for vacancies arising during those recesses.

At the request of the business firm involved, Noel Canning, the Court agreed to add a third question: is the president barred from making any recess appointment when the Senate, though out of town, is holding a routine session every three days while doing little or no business?  That question, basically, turns on whether the Senate decides when it is actually in recess, and thus when a president may make a recess appointment.   The D.C. Circuit’s ruling at issue did not deal with that issue.

There is no surprise that these questions — with major political as well as constitutional impact — were stirred up by disputes over presidential nominations to the National Labor Relations Board.  That seventy-eight-year-old agency, which oversees labor-management dealings, has become an increasing target of business hostility and, as a result, Republican opposition to its decisions and its membership.

Because the Supreme Court had ruled previously that the Board cannot function if its usual five-member Board drops below three, resistance to nominees when vacancies arise can affect its ability to function.  In fact, if the NLRB and the president ultimately lose the Noel Canning case, hundreds of cases decided when the disputed nominees helped fill up the Board’s membership could be undermined.  (When it has five members, the Board may delegate its decisions to three-member panels.)

Noel Canning’s was one of the disputed cases.  The soft-drink-canning division of the Noel Company had agreed with Teamsters Union Local 760 on a new contract in 2010, but the union complained to the NLRB in 2010, saying that the management was refusing to implement the new deal.

An administrative law judge of the Board ruled for the union, recommending that the company be required to implement the contract and pay its workers the wage increase and carry out the other benefits promised by that deal.

A three-member panel of the Board upheld that ruling in early February 2012.  President Obama had made three recess appointments to the Board on January 4 of that year, giving it the full five members allowed (with two holdovers remaining).   Two of the new appointees joined with one holdover on the panel that ruled against Noel Canning.

Both sides took the case to the D.C. Circuit, with the Board asking it to uphold its ruling and Noel Canning asking that the decision be struck down.  Among other reasons, Noel Canning argued that all three of the temporary appointees were not appointed when the Senate was actually in recess, so the Board only had two members at the time of the NLRB’s decision against it, and that was not enough to make any decisions.

The court of appeals ruled for Noel Canning, narrowing the president’s recess appointment powers by confining them to the breaks between annual sessions, and to the vacancies that arose specifically in such recesses.

The Solicitor General took the Board’s case to the Supreme Court last April.  Noel Canning in May urged the Court to hear the case, but urged the Justices also to rule on the question of whether the Senate can be considered to be in recess when it is coming back for “pro forma” sessions every three days — as it was, in fact, in the period when President Obama made recess appointments to the Board in January 2012.

The Court on June 24 granted review, and agreed to include the added question proposed by the company — a plea that also drew the support of the forty-five Republican members of the Senate.  The GOP senators contended that it was up to the Senate, under its constitutional power to make its own rules, to decide when it was — and was not — in recess.  It noted that the Senate actually did pass a new law (approving a cut in the federal tax on payrolls) during one of those sessions in late 2011.

Since the Court granted review in June, two significant events have occurred.  At this point, it seems unlikely that either one of these will have any direct impact on the Court’s consideration of the constitutional issues over recess appointments.

The Senate, in a compromise move late in July seeking to relax the partisan tug-of-war over filibusters of presidential nominees, gave formal approval to four new Board members nominated by President Obama, following the usual advice-and-consent procedure.  As a result, decisions by the Board with those new members are not in doubt legally — at least on the appointments question.  But the compromise did not retroactively end the constitutional controversy about the 2012 recess appointments.

That July compromise also did not end the feuding over filibusters in the appointments process, so a frustrated Democratic majority in the Senate in November adopted the very change in filibuster rules that both sides had long resisted.  It had been called the “nuclear option” because of the fear that it would have a devastating effect on the Senate’s long tradition of open and unrestricted debate, and even on the senators’ ability to get along with each other.

Under the changed rule, filibusters — stoppable only with a sixty-vote majority — may now not be used to block presidential nominees to positions in the executive branch or nominees to lower federal court judgeships.  Those are subject only to a majority vote for approval.  The filibuster rule, though, remains intact for nominations to the Supreme Court.

This development, though, came late in the briefing cycle in the Noel Canning case.  While one of the lawyers for an amicus told the Court of the change in a letter in December, the letter did not suggest what the Court might do with the information.   While the rules change does not itself alter the meaning of the Recess Appointments Clause, it does make that controversy of less immediate practical effect on actual presidential appointments.   Moreover, it is only a rules change, and could be modified in a future Senate.

The briefs on the merits by the parties are heavily focused on two themes:  that the history of recess appointments, since the Founding era, supports each side’s version of the correct way to interpret the words of the recess appointments clause, and that each other’s arguments about that clause will imperil the constitutional functioning of the other branch in a significant compromise of separation-of-powers principles.

Noel Canning and the Senate’s Republican members (along with House Speaker John Boehner, an Ohio Republican, who entered the case as an amicus) used their briefs to complain of a threat of executive “despotism,” while the Obama administration used its brief to complain of a threat of the absolute destruction of the president’s recess appointment powers.

The competition for amici support is not even close: there are only three briefs supporting the NLRB and the presidential claims, and more than two dozen behind Noel Canning and its Republican supporters.


This case has unfolded before the Court in somewhat the same fashion that partisan gridlock has grown more rigid across the street in the House and Senate: the two sides are so far apart that common ground seems like a delusion.  Beneath each side’s core arguments is a decided mistrust of the other side’s reading of history and constitutional principle, with escalating rhetoric of the dire consequences if the other side were to win.

The partisan nature of legislative gridlock is absent from the filings in this case — these are not Democratic and Republican documents, at least not outwardly.  But the historic controversy that has deepened in American politics, about the size and power of the federal government, is plain in the background of these filings: each side sees the other as engaging in a power grab, to turn the Constitution into an instrument for advancing its own policy agenda, and those are primarily partisan perspectives.

The difficulty for the Court, of course, is that it essentially must begin afresh, with its own view of what constitutional words mean — whether in their original articulation in the Founding era, or in their modern application to policymaking in the twenty-first century.   If the Court attempts to act as something of an arbitrator, conceding something to each side, it could quickly find itself in a maze of contradictions.  The arguments presented to it by each side are packaged as a series of mutually reinforcing points, not easily taken apart to try to make them fit across the inter-branch divide.

What the Court may well find itself doing, in the end, is focusing steadily on constitutional design: just what is the purpose of allowing the president to fill vacancies in government posts, on a short time-frame, and how can the prerogatives of each side in this constitutional struggle be accommodated and, just as important, preserved?

That is a judicial task, fundamentally, and it can only be complicated — or even frustrated — by seeking to rely significantly upon what the warring political branches see separately as the preferred design that would serve their conflicting ambitions.

If the task seems daunting, and it might well be, there is a way out for the Court.  A law professor at Catholic University in Washington, Victor Williams, has joined in the case as an amicus in favor of the NLRB and the presidency, but he has done so in part with a recommendation that the Court simply turn aside the Noel Canning and Republican party challenges to these specific recess appointments to the NLRB, on the theory that the dispute between the branches is a “political question” (in the constitutional sense of that phrase), not suited to judicial resolution.

The fact that the Senate itself worked out a compromise in July, to clear a slate of NLRB nominees, and that the Democratic majority in November used its power — boldly and in some ways menacingly — to cut down the filibuster on most nominations suggested that the core constitutional problem might well be left simply to legislative self-interest.

This is not a Court that is shy about taking on the most profound constitutional questions.  But it conceivably could wind up drawing the conclusion that this is one that it can leave to others to answer.

Recommended Citation: Lyle Denniston, Argument preview: The nomination wars, SCOTUSblog (Jan. 11, 2014, 12:03 AM),