A little known case arising out of a dispute between a soda bottling company in Yakima, Washington company and a local union has become a constitutional challenge. On Monday, the Supreme Court will hear oral arguments in National Labor Relations Board v. Noel Canning, a case that has garnered little attention. The resulting decision could forever alter an important presidential power and put into question hundreds, if not thousands, of initiatives and executive decisions made in the past decade.
Article II, Section 2 of the Constitution outlines the powers and responsibilities of the President. One such responsibility is the appointment of certain federal officers with the advice and consent of the Senate, such as judges or ambassadors. During the late 1700s travel to the nation’s capitol was often difficult and the Senate might not be able to act for several months at a time. In anticipation of this, the drafters included Clause 3, which allows the President to fill vacancies that may occur without the Senate’s approval in order to keep the government functioning. These recess appointments are valid until the end of the next session of the Senate, unless the appointment was confirmed in the interim.
Today, Senate recesses are much shorter and travel is easier, with the longest breaks during the annual August break (which has extended to up to six weeks) and the break between the end of the congressional session to the start of the next. However, actual work days for Congress have also been fewer. Last year, the House spent 118 days working on legislative business, the Senate worked 99 days – the lowest amount since 1991. This excludes “pro-forma” sessions in which the Senate has someone bang the gavel in and out, but no one is there do any actual business.
It’s kind of like having your co-worker clock you in and out at work while you’re taking a day – or several days – off.
This has led to confusion for many as to when Senate is actually on a recess and when appointments can occur. The confusion is the difference between intersession appointments (i.e. the Senate’s annual break before the next session) and intrasession appointments (i.e. when the Senate has pro-forma sessions every three days, sometimes taking an entire month off).
Recess appointments have been made since the days of George Washington. A few hundred years later, the frequency has increased and the need for their use has been less about the availability of the Senate and more about political fights. In recent history, President Ronald Reagan made recess appointments 240 times during his term, President Bill Clinton 140, and President George W. Bush, 171. By comparison, President Barack Obama has used this authority 32 times thus far.
According to recent court rulings, they’ve been doing it wrong.
On January 25, 2013, the U.S. District Court of Appeals for the District of Columbia ruled that appointments to the National Labor Relations Board by President Obama the previous year were unconstitutional because they were made during a recess between pro-forma sessions and not during an annual recess. The three judge panel further ruled that they were invalid because the actual vacancies did not happen during a recess (the vacancies had been in place for well over a year). Three months later, the U.S. Court of Appeals in the Third Circuit in Philadelphia agreed, ruling that the appointment of Craig Becker in 2010 to the NLRB was not valid because he wasn’t appointed during an intersession recess.
In both rulings, it came down to the meaning of the word “the.”
Clause 3 specifically reads “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” (emphasis added). Both courts interpreted “the Recess” as the annual break between sessions. Consequently all decisions made by the NLRB since are considered invalid because it did not have the required quorum, including the one which initiated the constitutional challenge.
There is little doubt that the Senate has used pro-forma sessions as a form of obstruction. In the last few months of President George W. Bush’s term, Senator Harry Reid used this tactic to prevent any recess appointments occurring during the Thanksgiving and winter breaks. Since the beginning of President Obama’s term, partisan obstruction has reached new levels, to the point that even Chief Justice Roberts has declared that the number of judicial vacancies has caused a state of emergency in our nation’s courts. In 2011, House Tea-Party Republicans in collusion with Senate Republicans purposely manipulated the Congressional calendar in an effort to prevent any and all recess appointments.
The government’s position is that the appointments have supporting precedence from previous administrations. Others have argued that the Senate’s use of appointment obstruction in the form of pro-forma sessions is essentially nullification of the president’s constitutional powers. In short, the government’s position is that the recess appointment power is valid anytime the Senate is not available, regardless of the length of time.
If the Supreme Court upholds the lower courts’ rulings, an unknown number of decisions by various agencies could be put into disarray, possibly going back decades. Even if the court narrowly construes its decision to the case at hand, it will limit the power of the office of the presidency – present and future. This could be especially challenging in the face of increased partisanship and the inability of Congress in recent years to work effectively with the White House.
The SCOTUS decision is expected in June.
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