Court strikes down recess appointments: In Plain English
on Jun 26, 2014 at 3:13 pm
With only four decisions remaining when the Justices took the bench today, we knew we would have to get something good: all four decisions had the potential to be blockbusters. And we did indeed, starting with a unanimous declaration by the Supreme Court that the president violated the Constitution in 2012 when he appointed three commissioners to the National Labor Relations Board during a brief recess of the Senate. Let’s talk about the decision and what it means in Plain English.
As unlikely as it sounds, the Court’s decision in National Labor Relations Board v. Noel Canning was its first pronouncement on the scope of the president’s power to make recess appointments. And the Court’s opinion was a mixed bag for both sides. Noel Canning, the soft-drink bottling company challenging the president’s recess appointments to the NLRB, and the conservative and business groups that supported it certainly regarded it as a victory in the sense that the specific recess appointments at issue were deemed invalid. But the president and his supporters could also declare victory, at least to a point: the Court upheld his power to make other recess appointments – as long as they are made during recesses that last at least ten days.
Justice Stephen Breyer (who before becoming a judge worked, among other places, as an attorney for the Senate Judiciary Committee) wrote an opinion for the Court with which Justices Kennedy, Ginsburg, Sotomayor, and Kagan fully agreed. Even before the Court addressed the particular questions before it, it made clear that its decision would be influenced by the long historical practice of recess appointments, by presidents from both parties: “We have not previously interpreted the [Recess Appointments] Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromise and working arrangements that the elected branches of Government themselves have reached.”
The Court began with the first question presented in the case: whether the Constitution allows the president to make recess appointments during “intra-session” recesses (breaks that occur within the two one-year sessions between congressional elections) or only during “inter-session” recess (the break between the two one-year sessions). Its answer on this question is a victory for the Obama administration and future presidents who want to be able to make recess appointments. Again relying heavily on a long tradition of recess appointments, it concluded that the constitutionality of a recess appointment does not hinge on whether it is made during an intra- or inter-session recess. After all, the Court noted, if the purpose of the Recess Appointments Clause is to “ensure the continued functioning of the Federal Government when the Senate is away,” it doesn’t really matter what you call the recess. If the Senate isn’t there, it isn’t there.
But there’s a catch – one that narrows the scope of the ruling. Even if it doesn’t matter whether the recess is an intra- or inter-session one, it does matter how long the recess is. Here the Court said that any recess that is shorter than three days is not long enough to make a recess appointment necessary. And a recess that is longer than three days but shorter than ten days will, in the normal case, also be too short to necessitate a recess appointment. (The Court added that there may be “very unusual” cases – such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response” – in which recess appointments would be permitted even though the recess was still shorter than ten days.)
The Court’s answer on the second question posed in the case – whether the president can use his recess appointment power to fill any vacancies that happen to exist when the Senate is in recess, or whether he is limited to vacancies that are created while the Senate is in recess – also favored the Obama administration. Explaining once again that the Founding Fathers included the Recess Appointments Clause to allow the government to operate when the Senate isn’t available to confirm senior officials, the Court reasoned that the narrower reading of the clause (as allowing the president to use his power only to fill vacancies that were created during the recess) “would prevent the President from making any recess appointment that arose before a recess, no matter who the official, no matter how dire the need, no matter how uncontroversial the appointment, and no matter how late in the session the office fell vacant.” And, the Court again emphasized, although presidents have long deployed the recess appointments power to fill vacancies, regardless of when they occurred, the Senate has never disputed that practice.
The Court then turned to the third and final question presented in the case: whether the Senate can prevent the president from making recess appointments even during its longer recesses by holding “pro forma” sessions – that is, sessions at which no work actually gets done – every three days. The Court answered that question in the affirmative, rejecting the federal government’s argument that the “pro forma” sessions are, in essence, just a sham to thwart the president’s recess appointments powers. In the Court’s view, all that matters is whether the Senate says it is in session and could at least in theory conduct business, which is possible (even if unlikely) at the pro forma sessions.
Here it is important to note that, although all nine Justices agreed that these particular recess appointments were invalid, there was not a lot of harmony on the Court in this case. Justice Antonin Scalia wrote a separate opinion that was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. As Scalia explained in a lengthy statement from the bench that followed Breyer’s summary of the Court’s decision, he and his three colleagues would have held that the president’s recess appointments power is substantially more limited than the Court ruled today. For example, they would have ruled that the president can only make recess appointments during inter-session recesses, and only then to fill vacancies that are created during that recess. And the majority did not escape Scalia’s trademark incisive remarks, as he criticized it for relying on an “adverse-possession theory of executive authority: “Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not ‘upset the compromises and working arrangements that the elected branches of Government themselves have reached.’”
So what exactly does all of this mean, going forward? First and foremost, it means that the three recess appointments directly involved in this case – to the NLRB – are invalid. That in turn means that any decisions in which those three NLRB commissioners participated while they were recess appointees are invalid. But nothing in the Court’s ruling suggests that it would invalidate other, earlier recess appointments. To the contrary, the Court made clear that, over two centuries, presidents had made only a very small handful of recess appointments during recesses that were shorter than ten days. And later on, it contrasted its approach with that of Justice Scalia – whose approach, it contended, “would render illegitimate thousands of recess appointments reaching all the way back to the founding era.”
But what about other recess appointments in the future? The short answer is that it really will depend on which parties are in power. Right now Democrats control both the White House and the Senate. With the decision by Senate Democrats back in November to invoke the “nuclear option” – which allows them to confirm the president’s nominees with a simple majority – the president currently doesn’t need to use recess appointments to fill judgeships or senior positions in the executive branch. But that could change if the Republicans gain control of the Senate this November (a prospect that many believe is increasingly likely): a Republican Senate could not only block the president’s nominees, but prevent the president from making recess appointments by ensuring that it never recesses for more than a few days. And, of course, the shoe could be on the other foot if – after the 2016 elections — the Democrats were to control the Senate but lose the White House. So even if the president’s recess appointments power may not factor into many voters’ decision-making process, it certainly could hang in the balance in the next two elections.