In a previous entry, I outlined the arguments in the case of NLRB vs. Noel Canning Company. To rehash, the company here lost a decision before the National Labor Relations Board. Upon appeal to the District Court of Appeals in DC, they won their case arguing that the decision could not stand since the composition of the NLRB was unconstitutional. Specifically, they argued and won on the basis that some of the members were recess appointments when, in fact, no Senatorial recess was in effect. Thus, although the outcome of this case may conceivably revolve around words like “recess,” “pro forma,” “adjournment,” and “happen,” the real crux of this case is the role of the Senate in the nomination/confirmation process, the separation of powers, and the ever expanding powers of the president, especially as expressed by Obama and members of his administration.
First, it must be made clear that presidents of every ideological persuasion have used the recess appointment power to fill vacancies within their administrations. Theodore Roosevelt was one of the first “abusers” of this power, but it was not until Harry Truman that it became an issue of contention at times. And there is the first problem with this case and where there appeared to be, from the oral arguments, the first sense of doubt among certain Justices over the Obama administration’s broad reading of this part Constitutional clause. It was very early in Solicitor General Donald Verrilli’s presentation when Scalia asked whether the practice or the text of the Constitution should prevail and to Scalia’s surprise, Verrilli opted for the practice argument. As Scalia stated, if some part of the Constitution is ignored long enough, then the meaning of the actual words of the Constitution changes, possibly to the point of being moot. This was a troubling concept to other Justices, including Breyer and Kagan, as it should be to any constitutional democracy.
The purpose of the Recess Appointments Clause was to give the executive an outlet for filling vital Executive Branch (and judicial branch) vacancies while Congress (specifically,the Senate) was not in session. Before the Civil War and even thereafter, Congress did not meet as they do now. It was not until the 20th century that Congress became essentially “full time.” Previously, they would often take breaks of up to six months. Naturally, vacancies could occur at these times and the executive should fill them without calling Congress into session to confirm the nominees, even though presidents did exactly that. But, the Framers recognized the possibility of abuse and put a check on these appointments noting they could only serve until the end of the next session of Congress.
But things have changed, namely the Twentieth Amendment which calls Congress into session on January 3rd. Given the full time nature of Congress, one session can last through the Christmas holidays and beyond thus shortening the period between “sessions” of Congress. Traditionally, they close up shop sometime before Christmas so there is a three-week gap. This is the intersession recess. In this particular case, the Senate never formally recessed and instead held sessions pro forma- meaning, someone showed up, pounded a gavel, and then adjourned for the day. This technically kept the Senate “in session.” It should be noted that not a single Democratic senator objected.
Essentially, the Obama administration is arguing that despite the technical nature of staying in session, because no business was transacted, the Senate had ended their session. Put another way, the Obama administration- not the Senate itself- is determining when the Senate is or is not in session. If that view is to prevail, then we may as well shred the Declaration of Independence and crap on the Constitution because our Founders never, ever intended the Executive to dictate to the Legislative Branch their rules or procedures.
Verrilli further posited the idiotic idea that if Obama’s view did not hold, it held dire practical consequences where the actions and decisions of those appointed in this manner would be null and void and courts would then have to go back and undo whatever was done. This notion was dismissed by Scalia under what is called the “de facto officer doctrine” which dates back to 1886. Here, the actions of government officers acting under color of official title are valid even if the legality of the appointment is deficient. Verrilli somewhat conceded the point. Furthermore, it was later in the argument when Justice Alito noted that if the act of not filling a vacancy was of such dire need and its non-fulfillment would create so much chaos, the president has the power to call either or both houses of Congress into session. In fact, since Obama is relying on history (not the text of the Constitution) presidents previosuly did regularly call only the Senate into session to confirm nominees before adoption of the 20th Amendment. The Senate was also called into special session on four occasions to ratify treaties. President Bush called Congress into special session in the aftermath of Hurricane Katrina while FDR regularly did so to deal with the Depression. Clearly, not having a quorum on the NLRB is not a national emergency.
Looking at the transcript of the oral arguments, it becomes obvious that there may very well be seven votes against Obama here with only Sotomayor and Ginsburg showing empathy for their argument. You can tell Breyer was trying to accept the government’s view, but just could not fathom the argument being made by Verrilli. They may have had Kagan until he posited the theory that historical practice should preempt the actual text of the Constitution, a very scary thought indeed.
On his closing redirect argument, Kennedy seemed to be striving towards some compromise, as did Alito at times. For example, they were fishing for some hypothetical limiting principle on a blanket presidential power. This was alluded to during the argument of Noel Francisco, the counsel for Noel Canning. For example, they wondered if for practical purposes, the president can make recess appointments if the Senate “recessed” or “adjourned” for more than 30 days. On redirect, Verrilli- perhaps sensing the mood of the original round of questioning and the fact he was not winning- said that would be an acceptable compromise. But, there is a serious problem with this. The Supreme Court interprets the Constitution; it does not play Solomon and split the difference in the interest of compromise. Again, it was Scalia who reminded his colleagues that if this was to be the practical resolution, it was best left to the political process, not the judicial process to impose a political solution.
As to the particular questions presented in this case, (1) Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to the enumerated sessions of the Senate: the historical evidence points to the latter. Because history has changed the nature of travel to and from Washington DC does not negate the words or the meaning behind the Constitutional clause. If it was the former, then any Senate break could be used as an excuse to fill any vacancy and be a presidential end-run around the Senate’s advise and consent role. All any president would have to do is simply wait for a national holiday to make an appointment without Senate confirmation, something our Founders clearly did not intend.
The second question: Whether the president’s recess appointment power may be used to fill vacancies that exist during a recess, or is instead limited to vacancies that occur during that recess. Again, this is dependent on the world in 1789 versus the present. Then, Congress (or the Senate) was absent for long periods of time. Should the president wait perhaps six months to fill an important vacancy? Clearly, our Founders thought not and provided a mechanism for dealing with these situations. However, that power was not without limits as the appointee could only serve until the end of the next session of Congress. Taking the government’s view that breaks during a technical session are de facto “recesses” would actually create greater chaos. For example, Congress takes a 30-day break in March and Obama makes an appointment. Under the government’s theory, that break is a recess. Congress comes back in April, works for 2 months, then takes another 30 day break (or, ends a “session” according to Verrilli’s compromise). They come back in August. Technically, “the next session” began when the gavel was pounded in August in this scenario. Thus, the appointee serves from March to August and the process repeats itself with the next 30-day break.
The final question: Whether the president’s recess appointment powers may be exercised when the Senate is convening every three days in pro forma sessions. Admittedly, the pro forma sessions were designed to prevent Obama from making these appointments. The Democratic leadership had the tools and the means to overcome this by simply keeping the Senate in session, Christmas holiday be damned. Reid has threatened that action in the past. But, that would have kept these nominees off the NLRB. Theoretically, the Senate rules can be changed to codify the term “recess” along the lines the administration desires. But, this is a double-edged sword and Harry Reid knows it. The Senate will not always be a Democratic majority (hopefully soon!) and there will not always be a Democrat sitting in the White House (couldn’t come sooner!). Either way, it is NOT the Supreme Court’s role to dictate to Congress their rules and definitions and it is even less acceptable for the Executive Branch to do so. Otherwise, we should just drop the term “President” and change it to “King.”
One other point of interest: with the change in the Senate rules by Harry Reid, although the appointments may be unconstitutional, Obama can re-appoint them and they would likely be confirmed under the new simple majority rules. However, any Senator can put a “hold” on the nomination. This may help explain why the Obama administration is going for broke and throwing a “Hail Mary” pass here.
Prediction: 7-2 or 6-3 in favor of affirming the lower court’s decision and negating the “recess” appointments. Noel Canning may not win in the practical sense (under the de facto officer doctrine)- and they concede that fact, but their practical loss is a victory for constitutional democracy.