The US Supreme Court on Monday takes up a potential landmark case examining whether President Obama overstepped his authority when he unilaterally declared that the Senate was in recess and appointed three new members to the National Labor Relations Board.
The Constitution assigns to the president the power to appoint judges and officers of the United States, but it requires him to act with the “advice and consent” of the Senate.
There is an exception. The Constitution also provides that the president “shall have power to fill up all vacancies that may happen during the recess of the Senate.” Such “recess appointments” can take place without obtaining the advice and consent of the Senate.
It is this recess appointment power that lies at the center of the historic showdown on Monday at the high court.
On one side of the issue, the Obama administration argues it has the power to decide for itself when the Senate is in recess for purposes of making recess appointments.
On the other side, administration critics argue that President Obama’s expansive view of his own authority would “yield a virtually unlimited unilateral appointments power.”
The case arises at a time of extreme partisan differences in Congress that have made it increasingly difficult for President Obama to fill vacant posts in his administration. Obstructionist tactics by Republicans are not new. The same tactics were used by Democrats – including then-Senator Obama – to block or delay appointments by President Bush.
But President Bush never sought to make recess appointments during pro forma Senate sessions. That action by President Obama marks a new level of executive defiance of the Senate.
To some extent the urgency of the case has dissipated following the recent decision by Senate Democrats to invoke the so-called nuclear option – changing the Senate rules to permit approval of presidential appointments by majority vote rather than 60. The action undercut the ability of the Republican minority to block Obama appointments.
But it does nothing to resolve the more fundamental questions involving the balance of power among the executive, legislative, and judicial branches of government.
The high court case will require the justices not just to examine the contemporary practice of recess appointments, but to also weigh why the procedure was written into the Constitution and how the founding generation wielded that authority.
“None of the first four presidents of the United States – founders and framers all – adopted the Executive’s interpretation, even though it would have expanded their power,” wrote Noel Francisco, a Washington appellate lawyer, in his brief challenging President Obama’s recess appointments.
“That is far more persuasive evidence than decades-later, self-serving executive opinions,” he said.
US Solicitor General Donald Verrilli responded by using examples from history as well. A court ruling in favor of the president’s challengers “would repudiate the constitutional legitimacy of thousands of appointments made by at least 14 presidents since the 1860s,” Mr. Verrilli wrote in his brief.
“Throughout our history, Presidents have made appointments in these circumstances to fill offices temporarily when the Senate was unavailable to provide its advice and consent,” he said.
The recess appointments in question were made on Jan. 4, 2012. Mr. Obama named three individuals to the National Labor Relations Board, which otherwise would have lacked a quorum to conduct business.
He took that action on Jan. 4 even though the Senate – a day earlier – had conducted a pro-forma session formally commencing the 112th Congress. Only one Senator presided over the pro-forma session, but under past practice, the Senate was technically in session when the president made his recess appointments.
The president and his lawyers disagree with those who claim the Senate was still in session. In their view, even though the Senate claimed to be session, it was actually in recess for purposes of the recess appointments clause.
Administration lawyers argue that the president can make recess appointments during such pro-forma Senate sessions because, in reality, the senators are not available to consult on appointments or conduct other business.
The issue reaches the high court in the context of a labor dispute at Noel Canning, a soft drink bottling and distribution company in Yakima, Washington.
The dispute went to the National Labor Relations Board, which ruled in favor of Teamsters Local 760 and against Noel Canning. The NLRB panel included two of three NLRB members who had been recess-appointed by President Obama a month earlier, in January 2012.
In appealing the NLRB ruling, company lawyers attacked the validity of the recess appointments and argued that the board thus lacked a quorum to conduct business at the time they issued their decision in the Noel Canning case.
The Court of Appeals for the District of Columbia Circuit agreed with Noel Canning that the recess appointments were invalid. The appeals court ruled that President Obama could only make recess appointments during the period between the end of one enumerated session of Congress and the beginning of another.
The court rejected the administration’s argument that it could make recess appointments during mid-session breaks whenever the Senate was unavailable to address presidential appointments or other business.
In addition, the court ruled that the president could only use his recess appointments authority to fill vacancies that arose during the formal recess between enumerated sessions of Congress.
Since the NLRB vacancies arose earlier than the formal recess (between the end of the 111th Congress in December 2011 and the beginning of the 112th Congress in January 2012), the recess appointments were unconstitutional, the appeals court ruled.
Lawyers for Noel Canning raised a third issue in their appeal. They argued that the president exceeded his authority by making recess appointments while the Senate was convening every three days in pro-forma sessions. The appeals court did not rule on that question, but the Supreme Court has asked the lawyers to address it.
Verrilli says that the Senate is not permitted to use pro forma sessions to unilaterally hamstring or manipulate the president’s recess appointments authority.
“Whatever leeway the Senate may enjoy when governing its own affairs, it cannot exploit that leeway to limit the President’s constitutional authority,” he wrote.
“The Senate’s choice remains the same it has faced since the earliest days of the Republic: remain in session for the conduct of business or depart for an extended period with the knowledge that the President may temporarily fill vacant offices,” Verrilli said.
Mr. Francisco approaches the issue from a different perspective. It is up to the Senate, not the president, to decide when the Senate is in session.
“Presidents have discretion to decide whether to make recess appointments, and to select whom they appoint. But they may not also determine when that power is available,” Francisco said. “That decision is for the Senate alone.”
The case is National Labor Relations Board v. Noel Canning (12-1281).
A decision is expected by late June.