SCOTUS limits the president’s recess appointment power

The U.S. Constitution, Article II, Section 2 provides that:

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.

Recess appointments have long been used by presidents to at least temporarily fill federal positions.

DN_Recess_Appoint“President Obama has made recess appointments 32 times, according to a Feb. 2013 analysis by the Congressional Research Service. Among the last four presidents, Ronald Reagan made the most recess appointments (232), followed by George W. Bush (171), Bill Clinton (139) and George H.W. Bush (78), who served only one term.  These include not only ones made between sessions of Congress, but ones during recesses within a session.” Obama lags his predecessors in recess appointments | Pew Research.

“When George W. Bush was president, Senate Democrats tried to use the tactic of holding pro forma sessions in an effort to prevent use of recess appointments. Bush had made several controversial recess appointments, prompting Senate Majority Leader Harry Reid to schedule pro forma sessions in 2007 to try and head off possible recess appointments during the two-week Thanksgiving break in 2007.”

Ian Millhiser of Think Progress explains:

There was a showdown during the Bush Administration over President Bush’s decision to recess appoint Judge William Pryor to the United States Court of Appeals for the Eleventh Circuit. In Evans v. Stephens, that court considered whether Pryor’s appointment was invalid because it occurred during a very short legislative break. This court is the highest legal authority ever to weigh in on the question of whether a break in the Senate’s calendar must last a certain number of days before a recess occurs, and it answered that question with an unambiguous “no”:

The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.

There are a number of well-established precedents demonstrating the president’s authority to make recess appointments during very brief recesses. In 1903, when the first session of the 58th Congress ended, President Theodore Roosevelt made over 160 recess appointments during a recess that lasted only a fraction of a day. Similarly, President Truman twice made recess appointments during recesses that lasted just a handful of days.

But there was no Supreme Court decision considering how long senators must be out of Washington before recess appointments are allowed — until today.

The U.S. Supreme Court today arbitrarily grafted onto Article II, Section 2 of the Constitution a requirement that the recess must be a period of at least ten (10) days or more before the president may make a recess appointment. Teddy Roosevelt rolled over in his grave. So much for constitutional origjnalism, or even plain text interpretation. The opinion in NLRB v. Noel Canning is here (.pdf).

The Court has endorsed the tactic of the opposition political party to the president using sham pro forma sessions in the Senate to effectively negate the recess appointment clause of the Constitution. (This only works if the opposition party to the president controls the House, because the House controls the calendar).

Combined with an opposition minority in the Senate abusing the Senate’s secret hold and filibuster rules, as we have today with Tea-Publicans, the opposition party  to the president may now effectively prevent the president from exercising his constitutional power of appointment to fill vacancies. This decision is a shift in the balance of power between the executive and legislative branches never contemplated by the Founders.

“The Supreme Court today effectively eliminated the president’s power to make recess appointments in all but the most unusual circumstances, with four justices going even further with an opinion that could have retroactively invalidated thousands of recess appointments made by presidents past if it had garnered just one more vote.” The decision is limited to these appointees. Today’s Supreme Court Decision Could Imperil All Unions In 2018:

The three recess appointments invalidated today were placed on the National Labor Relations Board (NLRB), a government agency with exclusive authority to enforce much of federal labor law. NLRB members serve five year terms, and unless at least three seats on the board are occupied, it is powerless to act. This set up a situation where the Board was about to drop below the minimum number of members it needed to operate, and Senate Republicans could keep it closed indefinitely by filibustering President Obama’s nominees (this was before Senate Democrats triggered the so-called “nuclear option” that eliminated most filibusters of presidential nominees).

As ThinkProgress previously explained, allowing the NLRB to go dark would have catastrophic consequences for many workers:

If the NLRB is powerless to act, there will be no one to enforce workers’ rights to join a union without intimidation from their employer. No one to enforce workers’ rights to join together to oppose abusive work conditions. And no one to make an employer actually bargain with a union. Without an NLRB to enforce the law, it may be possible for an employer to round up all of their pro-union workers, fire them, and then replace them with anti-union scabs who will immediately call a vote to decertify the union.

The meat of Justice Stephen Breyer’s opinion for the Court establishes that “for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.” In this case, the pro forma sessions were enough to frustrate President Obama’s recess appointment’s power.

The practical effect of this decision, however, is that the recess appointments’ power is almost entirely dead. For the moment, that will not matter much, because the president’s party also controls the Senate and, after the filibuster reforms put in place last November, a bare majority of the Senate can confirm anyone other than a Supreme Court nominee. Come next year, however, if Republicans control the Senate, than the implications of Noel Canning should be obvious. Senate Republicans will be able to block anyone Obama nominates to any Senate-confirmed job, and Obama will be powerless to do anything about it.

The fullest impact of this decision, however, will likely be felt in 2018. That’s when the five year terms of the NLRB’s current slate of members expire. If an anti-union president controls the White House in 2018, they will be able to effectively invalidate labor protections that have existed since the Franklin Roosevelt Administration by refusing to nominate anyone to this Board. But even if the president supports allowing federal labor law to function in 2018, they will be unable to keep the NLRB functioning if a majority of the Senate is determined to shut down federal labor protections. That is the most important impact of Noel Canning. It means that every five years the Senate will have the unilateral authority to turn off decades of protections for American workers.

This is, needless to say, a significant shift in the balance of power between the Executive and the Legislature. As a general rule, the Constitution requires both houses to pass a bill repealing a law, and it requires the president to either sign the bill or have their veto overridden by supermajorities of both houses. After Noel Canning, however, the Senate will be able to effectively repeal longstanding labor laws (although those laws will be reactivated if NLRB members are ever confirmed again).

In fairness, Justice Breyer’s opinion does note one circumstance that may still allow the president to make a recess appointment in the face of a recalcitrant Senate. The Constitution provides that “in the case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such time as he shall think proper.” This means that, in a theoretical circumstance where the House wishes to allow recess appointments but the Senate does not, the House may be able to force a situation where the Senate goes into recess.

Yet there are two practical obstacles to this maneuver. The first is that, as Tom Goldstein notes, “[a]lthough the President can adjourn the Congress if the two houses of Congress cannot agree when to adjourn, I’m not aware of that power ever being exercised, so it’s untested.” As the Noel Canning opinion demonstrates, the president walks upon treacherous ground when they push their recess appointments power — even when they appear to have legal support for their position.

The second obstacle is that, thanks to gerrymandering and other Republican advantages baked into the redistricting process, the party that is most likely to be hostile to union rights also has a strong advantage in U.S. House elections — at least for the near to medium-term. So even if the House has a theoretical means to push back against a recalcitrant Senate, it is likely to be unwilling to do so when the time comes.

Another consequence of this decision is that President Obama’s recess appointments to the NLRB, who were subsequently confirmed by the Senate, were “invalid” during the recess appointment term. This in turn means that any decisions in which those three NLRB commissioners participated while they were recess appointees are invalid. So there will be a wave of motions filed by lawyers seeking to set aside and reopen any cases in which they participated.
Of course, a ready solution to this problem going forward is to do away with the Senate’s undemocratic filibuster rules. Then there would be no need for recess appointments.

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