SCOTUS strikes down recess appointments, but gives Obama a net win

June 27, 2014

President ObamaYesterday was another big day at the Supreme Court, with both cases that were announced making headlines.

Of the two announced yesterday, one was particularly important politically: National Labor Relations Board v. Canning.

Despite the name, the case actually has very little to do with labor law, at least as it was presented to the Supreme Court.  Canning, rather, dealt with the question of the full extent of the president’s power to make appointments during Senate recesses.

Here’s a quick rundown for those who aren’t terribly familiar with what I’m talking about.

Article II, Section 2 of the U.S. Constitution contains a provision commonly known as the “Recess Appointments Clause,” which holds that:

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.

Presidents since George Washington have been filling vacancies during Senate recesses, and they’ve been contentious (usually among the opposition to the president at the time) on a number of occasions, but the Supreme Court hadn’t addressed the issue until this term.

And the reason that this case even arose is somewhat interesting: the NLRB cited Noel Canning for unfair labor practices by “refusing to reduce to writing and execute a collective bargaining agreement reached with [his workers’ union].”  Canning argued that the NLRB did not properly follow applicable contract law in making its determination.  But he also made another argument: that the NLRB lacked a quorum because three of the five Board members had been invalidly appointed under the president’s recess appointments powers.

In 2011, President Obama appointed all three of the members in question to the NLRB, but all of them languished in the Senate (one for about a year).  On January 4, 2012, Obama, invoking the Recess Appointments Clause, appointed all three to the NLRB.

The appointments were made during a three-day adjournment of the Senate; according to both the court of appeals and the Supreme Court, a three-day break is not long enough to trigger the Recess Appointments Clause.

So, this is likely why Facebook was able to come up with the trending story, “High court rules against Obama on recess appointments.”  But Canning isn’t actually a net loss for the President, or at least for presidential recess appointment powers.

True, these three appointments were invalidated by the Court ruling, but even the Solicitor General conceded that appointments made when the Senate was in recess for three or less days were invalid, so this result was largely expected.  Of the remaining three questions before the Court, Obama actually scored a victory on two.

On the first of these questions –whether the Constitution allows the president to make recess appointments during “intra-session” recesses or only during “inter-session” recesses – the Court ruled that the president has the authority to make appointments during either kind of recess.  The court of appeals, along with the four conservative justices that concurred in the judgment here, both wanted to limit the president’s powers to “inter-session” recesses, meaning that the president would only be able to make recess appointments during the break within the two one-year sessions between congressional elections.  Obviously, how the Court actually ruled gives the president much more power.

The second of these questions was whether the president may only fill vacancies created during a recess.  The Court ruled here in the negative, finding that the Constitution permits a president to fill all vacancies during a recess, regardless of when the vacancy was created.  Once again, the four justice concurrence (consisting of Chief Justice Roberts and Justices Scalia, Thomas, and Alito) would have ruled otherwise.

On the final question, however, the Court wasn’t so generous to presidential powers.  That question was whether the Senate can block presidential recess appointments by simply holding “pro forma” sessions every three days (“pro forma” sessions are meetings of one of the houses of Congress during which no business is conducted and which last for no more than a few minutes).  The Court ruled in the affirmative, despite the fact that their only real purpose is to prevent the Senate from being in “recess” such that the president may fill vacancies (“pro forma” sessions can, and often are, called by members of the minority party).

Aside from the “three days or less” recess prohibition, the Court also held that during recesses of more than three days but less than ten days, vacancies may only be filled in “very unusual” cases.

So there we have it: the Supreme Court’s first ruling on the constitutionality of presidential recess appointment powers since the practice began over 200 years ago.  While it may not seem particularly relevant now (what, with the Senate Democrats having opted to “go nuclear” last November, thereby only requiring a majority Senate vote to confirm presidential appointments), this decision will be stridently germane should the majority party in the Senate oppose the sitting president (as may be the case after the 2014 elections).