Part 2 of an occasional series on the recently completed Supreme Court Term detailing the most important cases (in my judgement, of course) and their likely impact. See Part 1.
I will begin with one of my favorite cases of the year dealing, as it does, with the Separation of Powers and overreach by the Obama Administration.
- National Labor Relations Board v. Noel Canning A 9-0 home run, the case does not turn on the facts of the original suit, that Noel Canning was ordered to do something they didn’t like by the NLRB, but rather that Noel Canning asked the DC Circuit to set aside an order from NLRB because the NLRB did not enjoy a quorum to do business when they issued the order, as the President had allegedly abused the Recess Appointments power to fill out the board while the Senate was in Pro Forma session, meeting for a few seconds once every three days, for the specific purpose of preventing the President from making such appointments. The opinion of the Court (Breyer, J) holds the President may fill vacancies during the recess of the Senate, no matter how or when such recess may occur, or at what time or through what cause the vacancy opened, but that the Senate is in session when it says it is so long as it holds the power to transact Senate business. Scalia, J filed a separate opinion concurring in judgement, joined by Roberts, CJ and Thomas and Alito, JJ, in which he argues the appointments were invalid not only because the Senate was in session at the time, but also that the Recess Appointments power is only effective if the vacancy itself also arises during the recess of the Senate.
There are actually two considerations involved here. The first is just how far the President can go to avoid Senate concurrence of his appointments as required by the Constitution. The Second involves just exactly which appointments may be so considered. Article , Section 2 says:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
That, however, is all it says. The first consideration I mentioned is just how long does the recess of the Senate have to be in order for the Recess Appointments clause to be operative; while the second asks the question if the vacancy itself must also occur “during the recess of the Senate.” I am sure most readers will be familiar with the reasoning behind the case: President Obama was having difficulty getting his appointments confirmed by the Senate due to the poisonous atmosphere created by the Democrats presuming to pass Obamacare without input from the minority, and Majority Leader Harry Reid‘s practice of refusing to allow minority amendments on any legislation whatever to protect his partisans from uncomfortable votes. Therefore the President appointed three members to the NLRB during the year-end recess between Congressional sessions, during a time when the Senate was meeting in Pro Forma session every three days to prevent precisely this occurrence. The NLRB, prior to those appointments, was not able to operate because of want of a quorum. The Respondent in the case, Noel Canning, appealed a NLRB order on the grounds the three new members were unlawfully seated and the Board still lacked a quorum.
The Court, in essence, has confirmed the fact the Recess Appointments Clause is intended to be an emergency procedure, to allow the federal government too continue operation when the Senate could not be conveniently assembled, as occurred regularly in the early days of the Republic. That is, the Clause could not be used by the President to avoid or bypass Senate scrutiny of his appointments for the sake of his convenience. The actual judicial test is that the Senate is in session whenever the Senate says it is in session, provided it retains the capacity to transact Senate business; and that a recess of the Senate not requiring the permission of the House is not long enough for the Appointments Clause to be operative. (Article 1, Section 5, Clause 4 requires neither house may adjourn for more than three days, nor remove to another location, without the permission of the other house.)
The other question asked by this case is how the vacancies arise. It is possible to read Recess Appointments Clause as requiring the vacancy itself to also arise during the recess of the Senate, not merely the appointment. The argument there is, if the Secretary of State, or somebody, keeled over from a heart attack during the recess, the President ought to be able to make a quick appointment to keep the State Department functional without waiting for the Senate to go back to work, but if the appointment was vacant before the Senate most recently adjourned, then they must have obviously known about it and chose to adjourn without confirming a replacement. Under the latter circumstance, the President should make do as best he can in respect of the Senate’s prerogatives. The more conservative justices– Scalia, the author, and Roberts, Thomas and Alito– all joined an opinion saying exactly that. It is not the opinion of the court, however, so the one that counts is the opinion by Breyer saying the President may fill vacancies during the recess of the Senate, as specified above, without regard to how or when they arose.
I concur in the judgement, that is the NLRB members were appointed in violation of the Constitution. It is, unfortunately, characteristic of Mr. Obama he pushes at the boundaries of the rules; this case is an excellent example of gross overreach. And because of it, this and future President’s appointment powers have been somewhat curtailed by this decision. I further tend to agree with Scalia’s opinion, that the vacancy must also arise during a recess, but this is a matter of opinion and subject to debate; the Constitution is not clear on this point.