On Monday, January 13, the Supreme Court will hear oral arguments on National Labor Relations Board v. Noel Canning, a high-profile case that invites the Court to interpret the breadth of the President's constitutional authority to make appointments during Senate recesses. In doing so, the Court will consider the balance of power between the President and the legislative branch -- and could ultimately effectively deprive the President of what has historically been an important tool for the Executive Branch to circumvent the opposing party's opposition to seating his nominees.
Article II, Section 2, of the Constitution gives the power to nominate "Officers of the United States," in many instances subject to the approval of the Senate. However, the following clause also stipulates that the President has the power to "fill up all Vacancies that may happen during the Recess of the Senate." These appointments are temporary, expiring at the end of the next congressional session unless the Senate approves the nomination in the interim. While recess appointments were historically more critical, owing to the difficulty in traveling and the Senate spending less time in the nation's capital, presidents of both parties have also used recess appointments to circumvent the Senate in the event that the opposition party thwarted executive appointments through the filibuster or other tactics.
The National Labor Relations Board, or NLRB, is a body composed of five individuals charged with investigating and preventing unfair labor practices and adjudicating disputes between labor unions and companies. Perceived by the business community from the outset as being overly protective of unions, the Board has long faced substantial opposition from the business world and members of the Republican party.
The NLRB requires a quorum of three members to issue decisions and orders. During President Obama's first term, Republicans in the Senate prevented the President from filling vacant seats on the NLRB, even going so far as to hold pro forma sessions, where often only a single lawmaker would gavel the body into session periodically over a break, often for a matter of only minutes.
When the number of members of the NLRB dipped to two, one below the needed quorum for the NLRB to render decisions, President Obama decided that despite the pro forma sessions, Congress was actually in the recess, thereby allowing him to make recess appointments. In January 2012, while the Senate was out of town holding only pro forma sessions for a three week period after beginning the 2012 legislative session, the President appointed three member to the NLRB, providing the body with a full membership and a quorum to be able to make decisions.
After beginning to issue decisions once more, the NLRB issued a ruling to settle a dispute involving a pay raise for union workers that had been agreed upon between Noel Canning, a company in Washington, and the Teamsters Local 760 union. When the union alleged that Noel Canning had reneged on the agreement, the NLRB issued a ruling siding with the union, maintaining that Noel Canning had an obligation to abide by the terms of the agreement. Noel Canning then filed suit, arguing that because the Senate had been holding pro forma sessions when the President made the three recess appointments to the NLRB, the appointments were unconstitutional and the NLRB therefore lacked the authority to decide the case.
The D.C. Circuit Court of Appeals, after rejecting other as-applied arguments that Noel Canning raised against the NLRB's decision, held that because the Constitution refers to "the recess" (rather than the plural form, recesses), the President can only make recess appointments during the break between sessions, not during periods when the Senate is away within its sessions. Further, the D.C. Circuit held that the President's recess appointment extended only to vacancies that have occurred during the recess, and not those that were vacant prior to the recess, such as those of the NLRB.
Because the President's three recess appointments violated both aspects of the D.C. Circuit's ruling, the D.C. Circuit held that their appointments were unconstitutional, and that the NLRB thus lacked a quorum to issue rulings related to labor disputes. Beyond nullifying the President's three recess appointments, the ruling placed in jeopardy each decision issued by the NLRB while the three members appointed during the recess were serving -- and other earlier decisions by the NLRB within the past decade where members of the Board were appointed during a Senate recess, in addition to many other recess appointments made over the years.
All the parties, including Noel Canning, the Teamsters Local 760, and the Obama Administration, agreed that the Supreme Court should take the case, which it agreed to do to consider three questions: first, whether the President's authority to make recess appointments was limited to the recess between the Senate's annual sessions, or whether it extended to intra-session breaks; second, whether the President could fill posts that had become vacant prior to the recess or only those that became vacant during a recess; and third, whether the Senate was in recess despite holding pro forma sessions.
The NLRB, represented by Solicitor General Donald Verrilli, Jr., maintains that the D.C. Circuit's decision runs contrary to the original understanding of the recess appointments clause and years of presidential recess appointments. The Solicitor General's brief stressed the breadth of the President's recess appointment power, arguing that the authority is not confined to inter-session recess of the Senate, that the President was empowered to fill vacancies arising before a recess, and that the Senate had been in recess notwithstanding the pro forma sessions, which General Verrilli effectively dismissed as having no bearing on the reality of Senate operations. The brief's appendix lists hundreds of intra-session appointments and dozens of recess appointments dating back to George Washington's presidency where a pre-existing vacancy was filled during a Congressional recess. Noel Canning, however, has urged the Court to affirm the D.C. Circuit's decision that the recess appointments unconstitutionally violate the recess appointments clause. Noel Canning is supported by all 45 Republicans in the Senate, and Senate Minority Leader Mitch McConnell has received time at oral argument to argue on behalf of the Republican caucus.
The issue of recess appointments has also become far less pressing since the Senate's decision to eliminate the filibuster with respect to executive and judicial branch nominees (except for Supreme Court nominees). So long as Democrats hold the majority in the Senate, President Obama's nominees can no longer be obstructed by Republican filibusters, thereby eliminating the need for the president to use recess appointments as a means of circumventing the Senate. If, however, Republicans wrest control of the Senate from the Democrats in the 2014 midterm elections, then President Obama would be unable to use recess appointments to fill vacant posts if Republicans prevented his nominees from being seated, in which case the Supreme Court's decision in Noel Canning would substantially impact his ability to appoint federal officials to serve during the final two years of his presidency.
Alexander Fullman is a Marshall Scholar pursuing graduate studies in political science at the University of Oxford's Department of Politics and International Relations.
Recent Constitution Daily Stories
Constitution Check: Are there no limits on Second Amendment rights?
Can the nation’s capital really be moved to Nebraska?
So who can argue a case in front of the Supreme Court?
Looking ahead at a big week in the Supreme Court