Yesterday, in National Labor Relations Board v. Noel Canning, SCOTUS nullified three temporary appointments Obama made to the board last year while the Senate was out of town but holding pro forma sessions to prevent the president from making recess appointments – a tactic devised by Democrats during the Bush administration. The ruling may also nullify the appointment of Richard Cordray to head the Consumer Financial Protection Bureau, which is being challenged in a separate case in federal district court.
However, the court’s first ever opinion on the Recess Appointments Clause largely upheld the president’s powers in this regard. Lyle Denniston outlines the rules it establishes:
First, the president may make a temporary appointment when the Senate is in recess between its annual sessions when it takes a formal break or during interruptions of one of its annual sessions, provided that the Senate actually has made itself unavailable for at least ten days. The Court turned aside the idea that this power would exist only when the Senate was formally out of town between annual sessions.
Second, the president may make a temporary appointment when the Senate is in recess, even if the vacancy arose before the Senate became unavailable and remained unfilled when it took a recess. The Court refused to embrace the notion that the power applied only to a government post that became vacant during a recess, and had to be filled during that recess. Both of those parts of the decision went in favor of presidential authority to fill vacant posts.
Third, in the only part of the ruling decidedly against presidential prerogative, the Court barred the president from filling a vacancy when the Senate is holding what it, by its own action, treats as a working session even if it does no real work and shuts down fully every three days. That is too short to be treated as a recess.
The court ruled unanimously but issued two separate opinions: the controlling opinion by Breyer and a concurrence by Scalia that reads more like a dissent. Noah Feldman dives deep into Breyer’s reasoning, which strongly reflects his pragmatic approach to constitutional law:
In essence, Breyer was acknowledging that, as a practical matter, the dispute between the two other coordinate branches of government shouldn’t be resolved by the court simply declaring that it knows the meaning of the Constitution, especially when that meaning is uncertain. … Then, in a still more frankly pragmatic part of the holding, Breyer stated that short breaks of three to 10 days should presumptively be considered not to be recesses at all.
Of course, the numbers three to 10 don’t appear anywhere in the Constitution. It’s a hallmark of pragmatism to add numbers for practicability even where the Constitution is silent. That, for example, is what Justice Sandra Day O’Connor did in her affirmative action opinion in 2003, when she famously said that she expected affirmative action to sunset within 25 years.
Ilya Shapiro, however, prefers Scalia’s originalist argument, which was joined by Roberts, Alito, and Thomas:
The only “rule” that emerges from Justice Breyer’s controlling opinion is that a three-day recess, the longest the Senate can adjourn without the House’s consent, isn’t long enough to enable recess appointments. That’s a very pragmatic decision and seems to confirm executive practice prior to recent years. It also happens to lack any connection to constitutional text (as Justice Scalia points out for four justices in concurrence), whose best reading indicates that only recesses between Senate sessions – not when, e.g., the Senate takes two weeks off around Christmas – count for purposes of activating the recess-appointment power. Moreover, that power is only textually justified to fill vacancies that arise during the recess itself, not for openings that the president didn’t happen to fill while the Senate was sitting.
In other words, Justice Breyer’s unprincipled opinion, while limiting recent presidential practice, cements a much more expansive reading of that power than the Constitution allows.
But Scott Lemieux ridicules Scalia’s “ahistorical” approach:
Scalia’s claim that the text of the recess appointment clause has only one reasonable interpretation simply beggars belief. As Breyer observed, among the people whom Scalia deems incapable of understanding the English language are Thomas Jefferson, who wrote in a letter than the recess appointments clause was “certainly susceptible of [two] constructions”.
Besides which, that a majority of the Supreme Court disagrees with Scalia’s interpretation of the text – even though it agrees with his bottom line on the case – also makes it hard to accept that the alternative, accepted reading of the text is, as Scalia implies, simply irrational. Even worse for Scalia’s assertion is the evidence provided by nearly two centuries of actual government practice.
So what does this ruling mean for now? Not all that much, beyond nullifying these three recess appointments:
[N]othing in the Court’s ruling suggests that it would invalidate other, earlier recess appointments. To the contrary, the Court made clear that, over two centuries, presidents had made only a very small handful of recess appointments during recesses that were shorter than ten days. And later on, it contrasted its approach with that of Justice Scalia – whose approach, it contended, “would render illegitimate thousands of recess appointments reaching all the way back to the founding era.”
But what about other recess appointments in the future? The short answer is that it really will depend on which parties are in power.
Morrissey asks what happens to the decisions the NLRB made when the invalidated appointments provided it with a quorum:
The answer appears to be that they can be successfully challenged and set aside. That was the context of the challenge to the recess appointments in the first place — lawsuits against regulation created in that period that alleged they were illegitimate. This ruling means that the Supreme Court unanimously agrees on that point, a severe rebuke to the “constitutional scholar” President and his abuse of power. More practically, though, the recent appointments to the NLRB can reconstitute that regulation if they wish, so the victory may be short lived for the plaintiffs.
Serwer raises the same question:
It’s unclear where the high court’s ruling leaves decisions made by the NLRB while its members were recess appointed. Richard Cordray, the recess appointed director of the CFPB, was later confirmed by the Senate. He then ratified past decisions made prior to his confirmation.
“It’s possible that the NLRB members could go back and ratify the decisions that were made when they were recess appointed, but it’s unclear if that would hold up in court. So that is something that would be litigated going forward,” said Brianne Gorod, appellate counsel with the Constitutional Accountability Center. ”The CFPB is in a slightly different position. Richard Cordray ratified all of his decisions after he was confirmed, and so I believe there’s no legal problem with those decisions at this point.”
“In the immediate term,” David Graham answers, “it’s not clear that this will make a big difference”:
What precipitated Obama’s NLRB appointments was a standoff in the Senate between Obama and Senate Democrats, who wanted to confirm nominees, and Senate Republicans, who vowed to block them. That crisis came to a head when Majority Leader Harry Reid invoked the “nuclear option,” lowering the threshold on confirmation votes to a simple majority and eliminating the threat of a filibuster. So even though Republicans still control the House, Obama hasn’t had to rely on recess appointments to fill posts.
But Republicans are generally favored to win back the Senate in November. If they do, they’ll have new power to block presidential appointments, and Obama will have a new incentive to find ways to work around them.
Damon Root cheers the court for placing some limits on a form of executive power that he says Obama has abused extensively:
This ruling represents a resounding and well-deserved defeat for the Obama administration, which failed to garner even a single vote for its expansive theory of executive power. Indeed, in terms of recess appointments, President Obama has revealed a tendency towards unilateral action that exceeds even that of his predecessor George W. Bush, who was no slouch in the executive power department. Yet unlike Obama, Bush adhered to the independence of Congress and stopped making purported recess appointments in 2007 when Senate Democrats first introduced the tactic of holding pro forma sessions to thwart his nominees.
But Jeff Shesol argues that it’s the congressional Republicans, not the president, who have abused their constitutional prerogatives:
[Alexander] Hamilton thought it “not very probable” that the Senate would block a Presidential nominee unless there were “special and strong reasons for the refusal.” That improbable event is now routine.
What the founding generation did not (and probably could not) imagine was obstruction as the first and sometimes the only order of business; what they did not foresee was a Senate faction that does not believe, as they believed, that “the true test of a good government is its aptitude and tendency to produce a good administration.” The prevailing idea on the right today is that no government is a good government, and that members of Congress discharge their patriotic duty not by producing, but by precluding, a good administration. Historical practice may point, as the majority opinion affirms, in one clear direction, but it sure isn’t the direction we’re going.
The Dish 