The Obama administration’s top constitutional lawyer confronted a skeptical US Supreme Court on Monday as he tried to convince a majority of justices that the president acted properly in January 2012 when he declared the Senate to be in recess and unilaterally appointed three new members of the National Labor Relations Board.
Without President Obama’s quick action in using his recess appointment authority, the five-member NLRB would have lost its quorum and any ability to render decisions.
Placing labor-friendly members on the NLRB was a high priority of the administration in 2011. Not everyone saw this as progress. Some of the board’s actions triggered congressional opposition, opposition that bloomed into a concerted effort to block Obama nominees to the NLRB.
The effort didn’t end there. Aware that the president might try to fill the vacant posts through recess appointments, the Senate agreed to remain in session throughout the winter break in December 2011 and January 2012.
To accomplish this, the Senate conducted a series of pro-forma sessions, one every three days throughout the entire period.
The action was designed to prevent the president from using his recess appointment authority to bypass the usual requirement that he obtain the advice and consent of the Senate for nominees.
It was against that backdrop that Mr. Obama in January 2012 brushed aside the Senate’s pro-forma sessions and declared that he was making three recess appointments to the NLRB.
A month later, Noel Canning, a bottling company from Washington State, lost its case before the NLRB. As part of its appeal, company lawyers questioned the validity of the three recess appointments to the NLRB.
A federal appeals court agreed with Noel Canning and ruled that the three appointments were beyond the president’s authority.
Now, the administration is asking the Supreme Court to reverse the appeals court and declare that the president has the power to ignore pro-forma Senate sessions and treat that period as if the Senate is in recess for purposes of making recess appointments.
US Solicitor General Donald Verrilli argued that the Senate could not manipulate its recess schedule in a way that would undermine the president’s broad power to keep the executive branch fully staffed and operating efficiently.
He told the justices that nearly all the nation’s presidents had made recess appointments under a variety of scenarios. If the court upheld the appeals court and ruled against the president, he said, it would “repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington.”
More specifically, he said, dozens, and perhaps hundreds, of NLRB decisions would be “under a cloud.”
Washington Appellate Lawyer Noel Francisco urged the justices to uphold the appeals court decision and embrace a more restrictive view of executive power.
The president’s recess appointment authority is contingent on the Senate being in recess, a procedure that is entirely within the Senate’s discretion, said Mr. Francisco, who is representing Noel Canning in the case.
“The one thing the president may not do is force the Senate to act against its will and run around the Senate’s refusal to act [on a nominee],” he said.
Francisco noted that in the early days of the country, members of Congress would make the long, difficult journey to Washington to conduct the nation’s business and then call a recess before returning home for months at a time. Since it was difficult to call Congress back into session every time a vacancy arose that needed to be filled, the framers of the Constitution included a provision to address that contingency.
The clause reads in part: “The president shall have power to fill up all vacancies that may happen during the recess of the Senate.”
Francisco said the clause sets out a procedure that is less relevant today than 200 years ago. Today, he said, senators could quickly be called back to Washington by the president in an emergency.
Washington Appellate Lawyer Miguel Estrada argued on behalf of Senate Republicans that the Obama recess appointments were aimed at bypassing the Senate’s role in approving nominees, rather than upholding presidential prerogatives.
He said the president waited to make his recess appointments until Jan. 4, 2012, one day after the new Senate convened (in a pro-forma session) on Jan.3.
He noted that Obama could have taken the action before the new session began on Jan. 3, but that by waiting a day the length of the recess appointments increased from one year to two years.
Mr. Estrada said the episode represented “the bottom of the slippery slope on the Recess Appointments Clause” and “a complete abuse of the process.”
“It is being used for no other purpose than to overcome the Senate opposition or the Senate disinclination to agree with the president’s nominations,” he said.
In his rebuttal, Solicitor General Verrilli challenged the charge. “It is just not the case that this is an end-run around the advice and consent of the Senate,” he said.
Several of the justices raised similar questions during the 90-minute session.
Elena Kagan, an Obama appointee and former solicitor general in the Obama administration, noted that the Recess Appointments Clause appears to have been written to address the problem of congressional absence.
More recently, she said, “presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the president thinks ought to be approved.”
“This is not the horse and buggy era anymore,” Justice Kagan said. “There’s no such thing truly as congressional absence anymore.”
Verrilli, who replaced Kagan as solicitor general, disagreed. The president had to act, he said, the NLRB was about to “go dark.”
“Yes,” Kagan replied, “as a result of congressional refusal, not as a result of congressional action.”
Verrilli tried to regroup. “Perhaps it sounds like this is an aggressive assertion of executive authority,” he said. But what the Framers were most concerned about, he said, was Congress draining authority from the executive branch.
“The executive needed to be fortified against those actions by Congress,” he said.
The case is National Labor Relations Board v. Noel Canning (12-1281).
A decision is expected by late June.