Obama Loses the Legal Battle, but the Battlefield Has Changed

The Supreme Court handed President Obama a defeat in NLRB v. Noel Canning  this week, declaring that Obama’s three appointments to the NLRB made during “recesses” between pro-forma sessions the Senate convened every three days were clearly unconstitutional.  If the Senate says it’s in session—even pro-forma—then it’s in session, and the president must obtain its advice and consent on appointments.  (For background on the issue of recess appointments generally and the NLRB case in particular, see here)

Although the unanimous decision is a rebuke, it isn’t as stinging as it could’ve been.  Writing for himself and the other three liberal justices plus swing Justice Anthony Kennedy, Justice Stephen Breyer’s opinion construed the appointment power broadly, noting the “centuries of history” during which presidents have made recess appointments.  Breyer wrote that Article II, Section 2, Clause 3 “should be interpreted as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confirmation.”

Breaking new ground, the Court said that any session of more than three days but shorter than at least ten is “presumptively too short” to constitute a recess during which a president could use the recess appointment power.  Moreover, it explicitly allowed presidents to make both intersession and intrasession recess appointments to positions that became vacant during the recess (as only a few did) or remained vacant when the recess began (as most do.)  This was enough for Justice Antonin Scalia to accuse the majority of legislating from the bench and conjuring the 10-day rule out of thin air: “If the Constitution’s text empowers the President to make appointments during any break in the Senate’s proceedings, by what right does the majority subject the President’s exercise of that power to vague, court-crafted limitations with no textual basis?”  Breyer responded with similar indignation, “Justice Scalia would render illegitimate thousands of recess appointments reaching all the way back to the founding era.  More than that: Calling the Clause an ‘anachronism,’ he would basically read it out of the Constitution.”

What all nine justices agreed on was that the 3 NLRB appointments were illegitimate, and the Board’s rulings, like the one against Noel Canning Company, are therefore invalid.  In the immediate future, the Administration will need to handle some additional litigation.  In the short term, though, the decision’s impact is blunted by the Senate’s November decision to invoke “the nuclear option” and lower the number of senators required for cloture to 51 for nominations to the executive branch and lower courts in the judicial branch.  Presumably, Obama will not need to resort to recess appointments if his nominees can surmount any filibusters with a simple majority in the Senate, where Democrats can be reasonably assured of 55 votes.  It is in the longer term that the decision’s impact may be more significant.  If Republicans regain control of the Senate, they will have an easier time marshalling 51 votes to oppose Obama’s nominees during the last two years of his term.

Future presidents will still be able to resort to recess appointments when the Senate fails to confirm their appointees during regular sessions, but the incentive for the Senate to remain “in session” and not recess for more than ten days is a powerful one.  Apart from political considerations, the Senate as an institution gets the win.