In most cases, the Constitution requires that all appointments to Federal Agencies, Cabinet Departments, and of course the Judiciary be made by the President and approved by the Senate by a majority vote. For the most part, this is how the vast majority of Federal appointees have obtained their position since the beginning of the Republic. At the same time, though, the Constitution does provide another method for appointment that allows the President to make appointments when Congress is not in session, with the provision that the appointment would only last until the end of the then-current session of Congress unless the Senate confirms the appointee. For a long period of time, this provision made sense given the fact that Congress only met for brief periods of time and there were gaps that would last months or longer during which the Senate would not be in session, but that fact has become less and less common in the modern era. Thanks to air, auto, and rail transportation, Congress is rarely out of session more than a couple weeks or a month, and can easily be called back to Washington on short notice.
Notwithstanding the fact that the rational for the Recess Appointments power has long ago faded away, it has remained in the Constitution and has increasingly become a point of contention between the President and Congress, especially when the two branches are controlled by different parties. During the Bush Administration, for example, President Bush used the Recess Appointment power to name John Bolton as United Nations Ambassador when Democrats used legislative procedures to block his appointment. While Republicans threatened at the time to change filibuster rules to allow nominations to go forward, that never happened. When Barack Obama became President, though, Republicans remembered what their predecessors had done and used the filibuster and other means to block Presidential appointments. After about two years of this, President Obama responded by making appointments to the Consumer Fraud Protection Bureau and National Labor Relations Board that Republicans had been blocking, and that’s when the legal battle began.
Making the claim that there were serious Constitutional problems with these appointments, challenges were filed to new rules drafted by the NLRB which asserted that the rules were invalid because the appointments were unconstitutional. While I was initially skeptical of the arguments that these cases were making, in January of last year, the Court of Appeals for the D.C. Circuit handed down a ruling finding the appointments to be unconstitutional and the argument made by the Court was quite persuasive. Later in 2013, the Supreme Court accepted the case for appeal. Hearings were held in the matter in January, and today the Court handed down a unanimous ruling that, effectively, severely restricts the President’s ability to make Recess Appointments when Congress, or even just the House of Representatives, is controlled by the other party:
WASHINGTON — The Supreme Court on Thursday said President Obama had violated the Constitution when he bypassed the Senate to appoint officials to the National Labor Relations Board during a brief break in the Senate’s work.
But the larger message of the court’s majority opinion, written by Justice Stephen G. Breyer and joined by its four more liberal members, was that there is a role for recess appointments so long as they are made during a recess of 10 or more days.
Justice Antonin Scalia agreed with the result in the case but issued a caustic concurrence from the bench. “The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” he said.
The decision affirmed a broad ruling last year from a federal appeals court in Washington that had called into question the constitutionality of many recess appointments by presidents of both parties.
The immediate practical significance of Thursday’s decision was undercut by the Senate’s recent overhaul of its filibuster rules and by the Senate’s confirmation of a different slate of nominees to the labor board. Republican filibusters had frustrated the Obama administration and prompted its recess appointments.
But the constitutional ruling, involving the balance of power between the president and the Senate, was nonetheless momentous.
The Constitution’s recess-appointments clause says, “The president shall have power to fill up all vacancies that may happen during the recess of the Senate.”
Analyzing that language, a three-judge panel of the appeals court last year said that presidents may bypass the Senate only during the recesses between formal sessions of Congress. Two of the judges went further, saying that presidents may fill only vacancies that arose during that same recess.
The case arose from a labor dispute involving a soft-drink bottling company, Noel Canning. The labor board ruled against the company, saying it had engaged in an unfair labor practice by refusing to enter into a collective bargaining agreement.
The company appealed, arguing that the labor board had been powerless to rule because a majority of its members had been appointed during a 20-day stretch when the Senate was convening every three days in pro forma sessions without conducting any business. Since the members of the board were not properly appointed, the company argued, its ruling was void.
In asking the Supreme Court to review the appeals court’s ruling in the case, National Labor Relations Board v. Noel Canning, No. 12-1281, the Obama administration sought an answer to only the broader questions decided by the appeals court. But the Supreme Court, acting on the suggestion of the company that had won before the appeals court, agreed to answer a narrower question, too: whether the president may make recess appointments when the Senate is convening every three days in pro forma sessions.
Lyle Denniston summarized the opinion:
Whatever those who wrote the original Constitution might actually have intended by what they wrote in that clause, the Court majority said the real clues to its meaning are found in some two centuries of “compromises and working arrangements” between the branches of government at opposite ends of Pennsylvania Avenue in Washington.
The split within the Court was as vivid an example as can be given of constitutional pragmatism winning out over constitutional formalism, and a very clear illustration of how the Constitution gets some of its most basic meaning from experience rather than from logic or hard-and-fast legal rules.
It thus was absolutely no surprise that the majority opinion would have been written by Justice Stephen G. Breyer, who has established himself as the most pragmatic of the Justices, and that the dissent would have been written by Justice Antonin Scalia, long recognized as the devotee of a Constitution of rules rooted in Founding era understandings.
Both recited passionately from their opinions, for nearly a half-hour Thursday morning, as the Court announced its much-awaited ruling on National Labor Relations Board v. Noel Canning — a run-of-the-mill workplace dispute that had mushroomed into a deep and fundamental inquiry into how best to interpret the Constitution.
Here is how the Court interpreted that clause governing presidential appointments during Senate recesses — contrasted, on each point, with what the Court rejected:
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 majority 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.
On this point, the Court refused to second-guess the Senate’s view that, in that situation, it is available, so no recess appointments can be made no matter how “empty” the Senate chamber may actually be during such pro forma meetings. The Court did say that the Senate must have the option, during such a brief gathering, of actually doing some legislative business, whether or not it actually does.
Over and over again, the Breyer majority opinion stressed that history was the Court’s guide, and it found what it treated as overwhelmingly compelling evidence that the working understanding between Congress and presidents has been that the recess appointment power would be exercised as the Court found authorized by the Constitution.
That opinion was joined in full by Justices Ruth Bader Ginsburg, Elena Kagan, Anthony M. Kennedy, and Sonia Sotomayor.
The Scalia dissenting opinion roundly criticized the majority for providing constitutional cover for a massive seizure of presidential power, existing only because Congress had not done enough to resist it. The ruling, the dissenters said, would do long-term damage to the idea that the Constitution does not allow one branch of the federal government to trammel another branch’s basic powers.
The Volokh Conspiracy’s Will Baude offers his own observations:
2. The majority reached all three of the questions presented, even though it only needed to resolve the “pro forma” question in order to resolve the case. That seems to have surprised some observers. And while I can’t say I like what the majority had to say about all three of those questions, I think resolving all three was the right thing to do. As I discussed here, the circuit split over the other issues would have persisted without the Court’s ruling, and resolution of that split is important.
3. The majority appears to leave open “the separate question of whether
new offices are vacancies within the meaning of the Clause.” In other words, when Congress first creates an office that requires Senate confirmation, can the first person ever to hold that office be a recess appointee? In a well-researched student note in the NYU Law Review, Amelia Frenkel argues not: the word “vacancy” presupposes a previous occupation. I believe that issue would have been raised in the case of Richard Cordray, had the challenge been made during his recess appointment. It may still be made in the future.(…)
5. Justice Scalia quotes, at length (pp. 40-41), the 1863 Senate reportrebuking the executive’s interpretation of the recess appointments clause. He says “[the majority] relegates the 1863 Judiciary Committee report to a pair of anodyne sentences in which it says only that the committee ‘disagreed with’ Wirt’s interpretation. (With like understatement, one could say that Shakespeare’s Mark Antony ‘disagreed with’ Caesar’s detractors.)” I’m glad to see the document get more attention. As I noted here, it may be one of the most neglected important documents about historical interpretations of the Recess Appointments Clause.
The impact that this decision will have on appointments depends to a large degree on the political circumstances at given point in time in the future. Under the current situation where the Senate is in the control of the President’s party, there will be little actual impact thanks largely to the filibuster rule changes that Harry Reid pushed through last year. Under those rules, a cloture vote for all nominations except Supreme Court appointments requires only 51 votes rather than 60 that had been required before, and which is still required for legislation and Supreme Court appointments. Using this rule, the Senate has moved forward at a rapid pace to approve a host of nominations at the Cabinet, Sub-Cabinet, and Judicial level that had been held up for most of 2013 if not longer. While there are still some legislative methods that Republicans could use to if not block at least delay appointments, the filibuster change makes getting most appointments approved much easier for the President. The situation becomes different, though, if the Senate falls into the hands of a party other than the one of the President. If that happens, then the Senate and can use the pro-forma session method to prevent the President from being able to make recess appointments almost entirely. Similarly, if the filibuster change that Reid implemented is ever reversed, then the minority party would be able to use the filibuster to block appointments just as Republicans were doing up until November of last year.
This is a long opinion — over 100 pages including the concurrence and appendix — and there will be much written about it in the days, weeks, and months to come. There will likely also be additional litigation over some of the unanswered questions in this issue, especially if we continue on our current course of increased antipathy between the Executive and Legislative Branches. On the whole, though, it seems as though the Court got the result right. As I noted above, the Recess Appointment Power was created to deal with a very real problem in the late 18th Century that continued well into the 19th Century, the fact that Congress was often out of session for long periods of time and that the need would inevitably arise for the President to make an appointment during that period. With modern transportation and the fact that Congress is in session far more frequently than it used to, though, the need for those types of legitimate emergency appointments has decreased significantly. Instead, the power has turned into a weapon that the Executive has used to make end runs around the Senate when it was being stubborn about confirming a nominee. More importantly, the idea that the appointments the President made here were made with the Senate was “out of session” was utterly absurd and would have essentially meant that a President could make a recess appointment any time Senators weren’t actually on the floor even if they had just recessed for a day or a few hours. Obviously, that isn’t what the Recess Appointment Power was created for, and the Court was right to place restrictions on the President’s ability to do that.
Here’s the opinion:
