Supreme Court to Decide What Constitutes a Senate “Recess”

On January 13, the U.S. Supreme Court will hear a much-watched case interpreting the president’s appointment power.  Written at a time when it could take weeks for members of Congress to get to the capital, Article II, section 2 of the Constitution allows presidents to fill vacancies temporarily during recesses for positions that would otherwise require Senate confirmation:

“[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law… 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.”

Noel Canning, a Pepsi-Cola bottling company in Yakima, Washington, challenged a National Labor Relations Board ruling against the company in a labor dispute.  (The company had refused to sign a labor contract it had agreed to orally, thereby violating the National Labor Relations Act.)  The basis for Noel Canning’s suit was that three members of the NLRB were appointed by President Obama during “recesses” when the Senate was actually meeting in pro forma (official but not legislative) sessions, convening for a few minutes every three days.  Noel Canning argued that the recess appointments were not valid, so the five-member NLRB lacked a quorum to issue any rulings, including the adverse one against the company.

Recess appointments–and preventing them–gained prominence in 2007 when Democrats took control of the Senate.  Hoping to block President Bush from making any more unilateral appointments, the Senate did not formally recess before going home for Thanksgiving. Instead, they held pro forma sessions, meaning a senator came into the nearly empty chamber every third day, banged the gavel, and went home. The idea was that the novel tactic would legally break up the long recess into a series of short ones that Majority Leader Harry Reid—now a supporter of Obama’s recess appointees–believed to be too brief for recess appointments.

Senate Democrats repeated the move for the rest of the Bush presidency, and Bush did not challenge it.  Under President Obama, Republicans turned the tables by using the power of the House to block the Senate from adjourning for more than three days.  (Article I, Section 5, provides that “[n]either House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days …”)  In January of 2012, Obama decided to challenge the new tactic by declaring the pro forma sessions a sham and appointing the three NLRB members.

All 3 judges on the D.C. Court of Appeals sided with Noel Canning and ruled that presidents may avoid the usual Senate confirmation process only during recesses between formal sessions of Congress, which generally occur once a year. (Two of the 3 judges went even further, saying that presidents could only fill vacancies that arose during that same recess.)

The Obama Administration (and many legal experts, Democrats and Republicans alike) reacted with alarm, noting that this decision could void not only 300 NLRB decisions issued since the appointments were made, but could also call into question the more than 500 recess appointments made during intrasession recesses—3 cabinet secretaries, 5 Circuit Court judges, 10 District Court judges, a CIA Director, a Federal Reserve Chairman, and numerous members of multi-member boards like the NLRB.  The Solicitor General urged the Supreme Court to reverse the D.C. Circuit’s ruling because if it were allowed to stand, “it would render many of the recess appointments since World War II unconstitutional.”  Some law professors even suggested that prisoners convicted by judges appointed during intra-session recesses were “leaping with glee at the prospect of seeing their convictions summarily overturned.”

The D.C. Circuit’s decision was emphatic:  “An interpretation of ‘the recess’ that permits the president to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the president free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.  This cannot be the law.”

House Oversight and Government Reform Chairman Darrell Issa has gone a step further:  He issued a statement urging the NLRB recess appointees to “do the right thing and step down.  To avoid further damage to the economy, the NLRB must take the responsible course and cease issuing any further opinions until a constitutionally sound quorum can be established.”

Others argue that the Circuit Court’s ruling was far too sweeping.  Presidents have used recess appointments to fill vacancies that opened before a recess since the 1820s, and have made recess appointments during Senate breaks in the midst of sessions going back to 1867.  In recent years, as senators have frequently balked at consenting to executive appointments, the power to make recess appointments has served as a safety valve for presidents of both parties.  Obama has made about three dozen recess appointments, Bush made 171, and Clinton made 139.

Up until now, the Senate has determined what constitutes a recess.  Although the Supreme Court usually prefers to dodge internal housekeeping matters within “a coordinate branch of government,” the potential consequences of the Circuit Court’s ruling left the justices little choice but to hear this case.  Recess appointments have become a hallmark of polarized politics in the nation’s capital, although they may be less frequent thanks to the Senate’s recent changes allowing cloture to be invoked on nominees more easily.  In any case, the Supreme Court’s decision in the Noel Canning case will be significant both institutionally and politically.