By Robert Barnes
The Supreme Court announced Monday that it will decide next term whether President Obama exceeded his constitutional authority by making appointments while the Senate was on break last year.
The case at hand involves Obama’s appointment of three members of the National Labor Relations Board (NLRB), but the broader issue concerns the power that presidents throughout history have used to fill their administrations in the face of Senate opposition and inaction.
The justices will review a broad ruling by a panel of the U.S. Court of Appeals for the District of Columbia Circuit that upset decades of understanding about the president’s recess appointment power. The court ruled that presidents may make recess appointments only between enumerated sessions of the Senate, not when senators take an intra-session break.
Solicitor General Donald B. Verrilli Jr. said in a petition to the Supreme Court that such a reading of the clause would “drastically curtail the scope of the president’s authority.”
In addition, the Supreme Court will consider a narrower question presented by the specifics of Obama’s January 2012 appointments: whether the president can make appointments when the Senate is holding pro forma sessions designed to thwart such action.
Obama has used the recess appointments power fairly modestly compared with recent predecessors. But he went where no other president had gone in his appointment of the three NLRB members and his appointment of Richard Cordray to head the fledgling Consumer Financial Protection Bureau.
Senators had gone home, but the Senate was holding pro forma sessions by convening with one senator every three days.
The White House justified appointing the NLRB members by reasoning that the Senate actually was in recess because it was not available to fulfill its advice-and-consent role by conducting business.
A challenge brought by a Pepsi bottler in the state of Washington and backed by the U.S. Chamber of Commerce went to the D.C. Circuit. But the unanimous panel skipped past the question of pro forma sessions for a far broader ruling.
D.C. Circuit Judge David B. Sentelle wrote that the administration’s interpretation of when recess appointments may be made would give 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.”
The ruling interpreted the Constitution’s directive that “the president shall have power to fill up all vacancies that may happen during the recess of the Senate” to apply only between sessions of the Senate, not merely when the senators are on a break, even an extended one.
The panel gave great weight to the Framers’ use of “the recess” rather than “a recess.”
Additionally, the panel also voted 2 to 1 that the phrase “vacancies that may happen” means only those openings that arise during the recess, not those that already exist when the recess occurs.
The ruling cast doubt on hundreds of decisions the NLRB has made in the past year, ranging from enforcement of collective-bargaining agreements to rulings on the rights of workers to use social media.
Both the government and the challengers asked the court to take the case to settle differing interpretations of the recess appointments clause.
The U.S. Court of Appeals for the 3rd Circuit earlier this year agreed that recess appointments could come only between sessions of the Senate.
But the U.S. Court of Appeals for the 9th Circuit came out the other way in 2005, and the Supreme Court at the time declined to review the decision.
When the clause was written, it could take weeks for senators to get to the Capitol. But partisan gridlock has made the recess appointment an important modern tool for presidents who are trying to get their nominees past a recalcitrant Senate.
In asking the justices to take the case, Verrilli said presidents have made more than 500 appointments during inter-session recesses, including “three cabinet secretaries, five court of appeals judges, 10 district court judges, a Director of Central Intelligence, a Chairman of the Federal Reserve, numerous members of multi-member boards, and holders of a variety of other critical government posts.”
The pro forma sessions were pioneered by Senate Majority Leader Harry M. Reid (D-Nev.) to thwart nominees of President George W. Bush. Republican senators have used them during Obama’s terms in office, and have filed a brief with the court saying justices should also consider the question of pro forma sessions that the D.C. Circuit bypassed.
“The president’s claimed authority to name principal federal officers without the Senate’s consent while the chamber has declared itself in session has no basis in the Constitution,” said the brief filed by all Republican senators.
The case is National Labor Relations Board v. Noel Canning.