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Defining the scope of the President’s recess appointment powers: In Plain English

Most of the time, the Supreme Court decides cases with a careful eye to what is known as precedent – that is, its earlier cases dealing with the same or similar topics.  Precedent plays a major role in important cases argued earlier this Term involving constitutional challenges to, for example, Michigan’s ban on the use of affirmative action at its public universities, the overall limits on how much an individual can contribute to candidates for federal office, and prayer at town council meetings.  But on Monday, the Court will take on a constitutional issue for which there is no real precedent because the Justices have never confronted it before: when can the president appoint senior officials and judges without first getting approval from the Senate?

Both sides in the case – National Labor Relations Board v. Noel Canning – have tried to fill the void left by a lack of precedent with arguments based on the text of the Constitution, the understanding of the Constitution’s drafters, and the past practice of other presidents.  After the oral argument, the Court will have the final say.  Going forward, its decision will significantly affect the balance of power between the president and the Senate when it comes to filling vacancies in the government.  Let’s talk about the case in Plain English.

Ironically, this grand constitutional conflict started out as a mundane dispute between Noel Canning, a family-owned soft-drink company based in Yakima, Washington, and the union representing its workers, over a forty-cents-per-hour raise that the company and the union had negotiated.  The union took its complaints about how the company had implemented the raise to the National Labor Relations Board, the government agency tasked with fielding that kind of problems.

Here is some important background about the NLRB.  The Board has five members who each serve five-year terms; without at least three members, the Board can’t operate.  Those five members are nominated by the president but need to be confirmed by the Senate.  And although partisan politics on both sides have resulted in many of the president’s nominations, to all kinds of positions, being stalled or blocked over the years, recently the NLRB has been a particular target for conservative senators, who regard the agency as being too sympathetic to employees and unions.

On January 4, 2012, the president directly appointed three new members to the NLRB without waiting for the Senate to confirm them or vote them down.  Instead, he relied on a provision of the Constitution known as the Recess Appointments Clause, which authorizes the president “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 day before the appointments – January 3, 2012 – Congress had technically begun the second session of the 112th Congress, but the Senate had quickly adjourned, and most senators left town.

However, the Senate did hold several very brief sessions.  These are known as “pro forma” sessions, because little or no work was accomplished.  Instead, usually one senator would come into the Capitol and convene the Senate for a short time before then adjourning it again.  The whole point of these brief periods of business is an attempt to limit the length of time that the Senate is deemed to be in “recess.”

So the three Obama nominees took their seats at the NLRB.  In February 2012, a three-member panel of the NLRB (including two of those new appointees) agreed with the union that Noel Canning was in the wrong.  Noel Canning appealed that decision to the next level, the U.S. Court of Appeals for the District of Columbia Circuit.  There, it argued not only that the NLRB’s decision was erroneous, but also that the NLRB could not have even issued the order in the union’s favor.  The reason?  The president’s recess appointments did not comply with the requirements of the Constitution.

The court of appeals agreed, for two separate reasons.  First, it ruled that the president can only make recess appointments during inter-session recesses.  An intra-session recess occurs during a session of Congress; by contrast, an inter-session recess happens between the first and second sessions of a particular Congress.  The president cannot, it explained, make them during intra-session breaks like the one that occurred in January 2012, when the second session of the 112th Congress had already begun.

The court also ruled that even during an inter-session recess, the president cannot use his recess appointment power to fill a vacancy that already existed before the recess.  Instead, he can only make recess appointments to fill vacancies that were created during the recess – i.e., while the Senate is away and so there has never been a chance for the president to make a nomination that can be promptly approved.

The federal government asked the Supreme Court to review the case, which it agreed to do.  The oral argument is tomorrow.  In its brief to the Court, the federal government begins with the text of the Recess Appointments Clause.  The Constitution does not, it contends, distinguish between a recess that happens during or between sessions; the term “recess” simply means a time when the legislature isn’t working.  Interpreting the phrase “the recess” to refer to both inter- and intra-session breaks, the government continues, is consistent with both the historical understanding of the term (going back to the British Parliament) and historical practice, with presidents from both parties having long made intra-session recess appointments.  The government also says its interpretation is more consistent with the purpose of the Recess Appointments Clause – allowing vacancies to be temporarily filled when the Senate can’t weigh in, and “simultaneously free[ing] the Senate” from having to be in session all the time.

And the D.C. Circuit’s holding that the president can only make recess appointments to fill vacancies that were created during a recess, the government suggests, just doesn’t make sense.  It would mean that a vacancy which occurs the day before a recess cannot be filled, even though one that is created the following day can.

Noel Canning defends the court of appeals’ decision.  It counters with its own examples of how commentators and historical practice support its interpretation of the Recess Appointments Clause.  It too places heavy emphasis, though, on the text of the Clause.  It cites the drafters’ reference to “the” recess of Congress rather than “a” recess and the drafters’ efforts to link “the recess” and “the session” as evidence that they intended recess appointments to occur only during inter-session recesses.  And the company is dismissive of the government’s contention that the president can use his recess appointments power to fill vacancies that pre-dated the recess, responding that “[n]o English speaker” would use the words found in the Clause to achieve such a goal; moreover, it adds, if the president needs to fill a vacancy that was created before a recess, the Constitution allows him to do exactly that by keeping the Senate in session.

One final note:  back in November, Senate Democrats voted to eliminate a longstanding rule that had allowed senators to block a president’s nominees by requiring at least sixty votes for the Senate to hold a vote on a nominee, even if only fifty votes are actually needed to confirm the nominee.  At least in the short term, that move reduced the significance of this case, because – with a Democratic majority in the Senate – it substantially decreased the chances that President Obama might need to resort to recess appointments.  But that would change if the White House and Senate were controlled by different political parties in future administrations — for example, if Republicans were to re-take the Senate later on this year.  And in any event, a decision in the company’s favor would raise questions about (and perhaps render invalid) all of the past NLRB rulings in which recess appointees participated.

As this specific case comes to the Court, the ideological lines are clearly drawn:  business interests – with the support of Republican senators, among others – are challenging recess appointments made by a Democratic president.  But things have not always been so simple.  As recently as 2005, liberal stalwart Ted Kennedy was involved in court challenges to a recess appointment made by President George W. Bush.  [In the interest of full disclosure, in my previous life as a litigator I was involved in some of those challenges as well.]  The Court declined to weigh in back then, and the only comment on the case came from now-retired Justice John Paul Stevens, who cautioned that it would be a “mistake to assume that” the Court’s rejection of the case reflected a judgment on its merits.  So it will be fascinating to see which Justices tip their hands at oral argument, and in what direction.  We’ll be back to report in Plain English soon after it’s over.

Recommended Citation: Amy Howe, Defining the scope of the President’s recess appointment powers: In Plain English, SCOTUSblog (Jan. 12, 2014, 11:50 AM),