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Symposium: The Senate must act to end dysfunction

In National Labor Relations Board v. Noel Canning, the Supreme Court unanimously concluded that three NLRB members were unconstitutionally appointed by President Obama under the guise of his recess appointment power.  Five Justices, in an opinion by Justice Breyer, affirmed a broad interpretation of the president’s power to make recess appointments, while concluding that the appointments at issue were invalid because the Senate had held “pro forma” sessions that broke a lengthy recess into smaller ones. Four concurring Justices, led by Justice Scalia, would also have invalidated the appointments, ruling that the recess appointment power applies in only very narrow circumstances.

The decision was, in significant ways, a surprise.  Many court watchers expected the Court to either substantially narrow the president’s power under the Recess Appointments Clause, as Justice Scalia argued, or avoid the question altogether, by solely addressing the “pro forma session” issue.

Instead, the majority decision was an important rejection of narrow textualist and originalist arguments that would have eviscerated the recess appointment power as it has been understood for generations.

At the same time, the Court displayed little understanding of the recent politicization of the confirmation process or the structural role that the recess appointment power plays as a stop-gap to ensure a functioning democracy, making the rather remarkable statement that “[m]ost appointments are not controversial and do not produce friction between the branches.”  Even more troubling was the Court’s elevation of form over substance in ruling that the Senate’s pro forma sessions – in which the Senate calls itself to business for a few seconds and conducts no business – were sufficient to deny the president the authority to make recess appointments.

Yesterday’s decision opens the door to new kinds of Senate obstruction and risks eviscerating the president’s practical ability to make recess appointments.  The decision creates even more urgency around the need for the Senate to reform its practices, end obstruction of nominees, and ensure that our agencies and courts are adequately staffed.

The missing government dysfunction story

Justice Breyer’s opinion is in many ways an important model of how history – and common sense – should inform constitutional interpretation.  The text of the Recess Appointments Clause is far from a model of clarity, and under these circumstances, the Court rightly looked to long historical practice, acknowledging the relevance of the “compromises and working arrangements the elected branches . . . have reached.”  The Court likewise refused to “frustrate the purpose” of recess appointments – which it determined was to “ensure the continued functioning of the Federal Government when the Senate is away” – by adopting different rules for recess appointments depending on the timing of a Senate recess or when a vacancy had opened.

But while acknowledging the role that recess appointments play in ensuring a functioning government, the Court showed no interest in the practical reasons why recess appointments have been so important in recent years – Senate obstruction of the confirmation process.  Of course, in contrast to the Court’s assertion that “most appointments are not controversial,” the reality is that even routine appointments have become mired in controversy in recent years, as the Brennan Center’s amicus brief explained.  Before reforms to the filibuster rules were made in November 2013, nearly half of all cloture motions ever filed or reconsidered on nominations were made in 2009-2013, according to the Congressional Research Service.  Since then, new hurdles to Senate confirmation have already emerged, with a May 2014 study by Common Cause finding that 110 executive branch nominees were then pending on the Senate floor, as compared to 32 at the same point in George W. Bush’s presidency and 12 at the same point in Bill Clinton’s presidency.

The truth is that in recent years, recess appointments have played a vital role in ensuring a workable government in the face of Senate dysfunction.  Indeed, the story behind the NLRB appointments that were invalidated in Noel Canning is illustrative, as we documented in a recent white paper. Subject to a partisan tug-of-war for many years, appointments to the NLRB have long been politicized and subject to obstruction in the Senate – not on the basis of concerns regarding the qualifications of the nominees, but on a desire to render the agency, in the words of one senator, “inoperable.” If President Obama had not used the recess appointment power in 2012 to maintain a quorum at the agency, a Senate minority acting under threat of the filibuster power would have crippled the NLRB for two years.  In fact, without the use of recess appointments, the NLRB would have been without a quorum for 2,885 days since 1988 – almost eight years.

Or consider the Consumer Financial Protection Bureau (CFPB).  Created in 2011 in the wake of the financial crisis to protect consumers’ interests, the CFPB requires a director in order to perform many of its core functions.  President Obama nominated Richard Cordray to head the agency, but the Senate was unable to confirm him.  Once again, a minority obstructed his appointment based not on his qualifications, but because, as forty-four senators explained in a letter to President Obama, they would simply “not support the consideration of any nominee, regardless of party affiliation” because of their opposition to the CFPB generally.  After months of recalcitrance from the Senate, President Obama recess appointed Cordray to be director of the Bureau.  As a result, the CFPB fully functioned for a year and a half, during which it otherwise would have been paralyzed.

The Court discounted these practical reasons why recess appointments have become increasingly important, rejecting any notion that recess appointments are “designed to overcome serious institutional friction.”  Yet at its core, Noel Canning is – or should have been – about the president’s constitutional duty to “take Care that the Laws be faithfully executed” through the appointment power, keeping our agencies running and our courts staffed.  Throughout our history, presidents have adopted an interpretation of the Recess Appointments Clause that recognized, in the words of President Monroe’s attorney general, that the “substantial purpose of the constitution was to keep these offices filled.”  When Senate obstruction leaves nominees in limbo, it is exactly the role of recess appointments to serve as a stop-gap measure to fill vacancies and help ensure a workable government.

Once recess appointments are understood as a mechanism for ensuring workable government, the Court’s decision to invalidate the NLRB appointments on the basis of the Senate’s use of pro forma sessions is quite troubling.

Pro forma sessions are another aspect of the polarization and dysfunction that have characterized the appointments process in recent years.  These nominal sessions had never been used to interfere with the president’s recess appointment power prior to 2007, when Senator Harry Reid first introduced the tactic in an effort to block recess appointments by President George W. Bush.  In 2012, the pro forma sessions at issue in this case originated with a decision by House Republicans to refuse to permit the Senate to adjourn for more than three days (pursuant to the Constitution’s Adjournments Clause) in an attempt to stop the president from making recess appointments.

In yesterday’s decision, the Court concluded that the Senate can use pro forma sessions in a manner that effectively keeps the president from being able to make recess appointments.  While the Court raised legitimate questions about its capacity to evaluate when the Senate is actually in session, it elided the important fact that, here, the Senate had passed a resolution stating that no business would be conducted during its pro forma sessions – providing a bright line that could have enabled judicial review.  The result is a new tool of obstruction for the Senate in the confirmation process, potentially leaving the president with no practical ability to use recess appointments to fill vacant seats.

What’s next for the Senate

While the Court’s decision left the Senate with another means of obstruction, its ultimate impact on the appointment process is less clear.  By shifting the balance of power toward the Senate, the decision also puts added pressure on the Senate to address the failures in the confirmation process that necessitated the use of recess appointments in the first place.

The Senate already took an important step toward reform last fall by changing the filibuster procedure for most nominees to require only a majority vote for cloture.  Yet further reforms are urgently required to ensure that executive and judicial nominees are considered in a timely fashion – including reducing opportunities to waste floor time and reforming the blue slip process, where home-state senators can keep judicial nominees from moving forward. Without such reform, yesterday’s decision has the potential to significantly hamstring the president’s power to execute our laws.



Recommended Citation: Alicia Bannon and David Earley, Symposium: The Senate must act to end dysfunction, SCOTUSblog (Jun. 27, 2014, 10:19 AM),