Court Questions President’s Recess Appointments

On Monday, the Supreme Court heard more than 90 minutes of arguments in Noel Canning v. National Labor Relations Board, a challenge to the appointment of NLRB board members during a pro forma session of the Senate in January 2012. The Court considered three questions:

• Whether recess appointments may be made during an intra-session recess of the Senate;
• Whether the vacancy to which a recess appointment is made must have arisen during the recess; and
• Whether the recess appointment power may be exercised during pro forma sessions of the Senate.

In order for the President to prevail in this case, each of these questions must be answered in the Administration’s favor. Solicitor General Donald Verrilli argued for 45 minutes. Noel Francisco argued on behalf of the challengers for 30 minutes, and Miguel Estrada represented all Republican Senators for 15 minutes. A decision is expected before the end of June.

History of the Appointments and Noel Canning

In January 2012, President Obama appointed Sharon Block, Terence Flynn, and Richard Griffin to the NLRB. At the time, the Senate was holding pro forma sessions, a procedure previously used by Senate Democrats to prevent recess appointments. Unsurprisingly, as the newly appointed board members began issuing orders and opinions in labor disputes -- including one against bottling company Noel Canning -- challenges to the board’s authority arose.

What Happens to NLRB Decisions?

The government argued that disrupting the recess-appointments would “repudiate the constitutional legitimacy” of those appointments, leaving “hundreds of board decisions … under a cloud,” and would “diminish presidential authority” in a manner inconsistent with the constitutional structure. The Solicitor General later conceded, however, that the decisions would retain validity under a variety of legal doctrines. Noel Francisco reminded the Court that to the extent that any disruption resulted from invalidating the recess appointments in question, “the government can solve the problem through agency ratification of past decisions.” He further reminded the Court that it had “never shied away from enforcing the strictures of the Constitution simply because it could have some impact on prior cases.”

“There is no power in the Constitution to use the Recess Appointments Clause to overcome the opposition of the Senate to the President’s nominees. And for all that we hear about today, which has to do with how the heaven will fall, and the parade of horribles … The only thing that will happen is that the President, heaven help us, will be forced to comply with the advice and consent that the … Appointments Clause actually calls for ... That was what the Framers unanimously agreed was going to be the principal means for appointments for the principal officers of the union.”

– Miguel Estrada

Who Determines When the Senate is in Recess?

Justice Breyer: Where is it in the history of [the Appointments] clause, in its origination, that it has as a purpose to allow the President to try to overcome political disagreement?

Verrilli: I don't think that’s its purpose, but it is in the Constitution.

The Constitution is clear that the “ordinary power of appointment is confined to the President and Senate jointly,” as Alexander Hamilton wrote in Federalist 67. At the heart of the argument is the question of whether a President’s recess appointment power grants the executive the sole power to fill positions in his Administration regardless of how the Senate chooses to exercise its advice and consent authority -- including its scheduling of pro forma sessions. The Court appeared to be skeptical of an interpretation of the appointments clause that would allow a President to sneak around the Senate’s advice and consent role. Instead, the Court seemed to be sympathetic to the Senate’s prerogatives.

“There’s no such thing truly as congressional absence anymore. And that makes me wonder whether we’re dealing here with what’s essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.”

– Justice Kagan

On the question of whether the Senate’s recent practice of conducting pro forma sessions as a means of preventing Presidents from exercising their recess appointment power, Justice Kagan appeared to conclude that Administration would have a difficult time prevailing: “It seems to me you also have to look to history and the development of an equilibrium with respect to Congress’ definition of its own power to determine whether they are in recess or not. In other words ... the history is entirely on the Senate’s side, not on your side.”