Recess Appointments: Did Obama go too far?

For the first time in its history, on January 13 the Supreme Court considered the power of the president to make recess appointments. Recess appointments, the use of which has significantly expanded in recent years, allow the president to appoint officials without Senate approval while the body is in recess. At stake in National Labor Relations Board v Canning is an interpretation of checks and balances between the legislative and executive branches, a type of federal power balancing enshrined in the Constitution.

In January of 2012 Barack Obama exercised his recess appointment power in order to appoint three members to the National Labor Relations Board, or NLRB. Article II of the Constitution states that the president “shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate.” The only problem—the Senate wasn’t in recess.

Or was it?

For months the Senate refused to act on President Obama’s appointments to the NLRB. The board was created as a part of the New Deal to mediate labor disputes, and has often drawn criticism from conservatives for being too labor-friendly. Before the three appointments by President Obama, the board lacked the quorum needed to conduct business, effectively shutting it down.

In order to prevent him from exercising his recess appointment power to fill these seats and revitalize the NLRB, the Senate conducted pro forma sessions during the periods when the Senate wasn’t conducting normal business- a lone senator would go to the Senate floor, gavel in, gavel out, then leave. The whole process could take less than a minute, but it kept the Senate technically in session. After months of this, President Obama made the recess appointments of the three members to the NLRB, claiming these sessions were effectively a recess.

Several months later, the Noel Canning Corporation found itself in a labor dispute to be adjudicated by the NLRB. Finding itself on the losing end of the decision, the company sued the NLRB. It claimed that the members were ineligible to make the decision because the appointments made “in recess” were unconstitutional. The United States Court of Appeals for the District of Columbia agreed, handing down a ruling invalidating those appointments and providing a strict standard for when a recess appointment is constitutionally permissible.

The ruling was sweeping: It went far beyond the issue of simply whether the president can decide what constitutes a recess. It ruled that a vacancy can only be filled in recess appointment before a new congress arrives at the capitol or during a formal break at the end of the session, not during any mid-session break. Additionally, and with greater potential consequences, it ruled that only vacancies that arise during these formal recesses can be filled. If this ruling is fully upheld, it will dramatically reduce the scope of the president’s power to make recess appointments and potentially call into question thousands of such appointments made over the course of centuries.

At oral argument on January 13, the Supreme Court seemed skeptical that President Obama had acted within constitutional limitations. Chief Justice John Roberts claimed that the Senate has “an absolute right to refuse” to confirm executive appointees, regardless whether the executive views this as “intransigence.” Justice Elena Kagan, an Obama appointee, suggested that it is “the Senate’s role to determine when they’re in recess” and challenged Solicitor General Donald Verrilli, the lawyer representing the government, to explain why this article “is not a historical relic.”

Kagan’s critique provides an interesting look at the article’s historical function. The origin of the recess appointment power was to allow the President to ensure the continued function of the federal government when the Senate was in recess. Travel and communication technology made it impossible for the Senate to convene in a timely manner should the need arise. With modern technology, however, today’s Senators are able to convene at the proverbial drop of a hat. It is not surprising that several justices openly questioned the modern relevancy of the clause itself.

In defense of President Obama’s actions, Solicitor General Verrilli claimed that the pro-forma sessions of congress effectively constitute a recess since, under a formal order, no business is conducted. In response to this, Chief Justice Roberts suggested that since this could be worked around by simply changing the order to something along the lines of “it is not anticipated that any business will be conducted”, the argument that the language of the specific Senate order made the appointments permissible was specious.

Court watchers predict that the Supreme Court will not decide the case in as sweeping a fashion as the lower court, but there is little doubt they will rule that this was an overreach of executive power. It is most likely the court will rule in favor of Noel Canning on the grounds that the Senate, not the president, has the power to decide when the body is in recess. The Supreme Court will likely hand down the decision for the case in June.

With the recent change to the filibuster rules in regard to presidential appointees, this case, should the ruling go against the federal government, will have fewer immediate consequences for President Obama getting his appointees through the Senate. However, for the next president facing a Senate controlled by the opposition party, this ruling could effectively eliminate one option for getting around potential obstruction. If the Republicans win back the upper house in 2014, eliminating the power of Democrats to unilaterally approve President Obama’s appointees, the repercussions of the ruling may be felt in the near future.