While politicos across the country were following SCOTUSblog hoping for decisions on the gay marriage cases this morning, the Supreme Court announced that it will take up a case next term that could have important implications for the breadth of the president’s power in appointing federal officials, a power which is shared with the Senate.
National Labor Relations Board v. Noel Canning challenges the constitutionality of President Obama’s recess appointments to the NLRB.
The writ of certiorari from the Supreme Court discusses two issues to be decided:
- Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.
- Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.
Recess appointments are authorized in Article II, Section 2 of the Constitution, which states:
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.
In January, a D.C. Circuit U.S. Court of Appeals ruling struck a major blow to recess appointments. The court ruled that “the Framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings.”
Until after World War II, intrasession recess appointments were extremely rare. Referring to similar logic used in a prior case, the ruling said “that the infrequency of intrasession recess appointments during the first 150 years of the Republic ‘suggests an assumed absence of [the] power’ to make such appointments.”
“At the time of the Constitution, intersession recesses were regularly six to nine months…and senators did not have the luxury of catching the next flight to Washington,” the ruling said.
The appointments in question were done between pro forma sessions of the Senate—where a single senator convenes every three days—which are held to prevent recess appointments. The White House argued that, since these sessions were only a formality, the Senate was really in recess and Obama was free to exercise his power for recess appointments, an argument with which the court disagreed. “Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers,” the ruling said.
The court also denied the use of recess-appointment power to the president for positions that were not vacated during that same recess. “There is no reason the Framers would have permitted the President to wait until some future intersession recess to make a recess appointment, for the Senate would have been sitting in session during the intervening period and available to consider nominations,” the ruling said.
In prior considerations of the same matter, the 3rd Circuit U.S. Court of Appeals ruled in the same manner, while the 9th Circuit U.S. Court of Appeals ruled the opposite way.
If the Supreme Court rules in a similar manner to the D.C. Circuit or refers it back to the lower court, recess appointments may be a thing of the past, a welcome step back towards the original meaning of the Constitution. Right now, congressional recesses are never long enough to validate the need for a recess appointment, so it is absurd to use them to get around political fights.
A similar ruling would also call into question the legitimacy of every ruling by the NLRB since these appointments were made in the beginning of 2012—something the administration noted in its brief as a warning as to why the ruling should not be upheld.
The NLRB is a notoriously liberal agency that has taken controversial actions such as suing Boeing for opening a new plant in South Carolina, a right-to-work state, rather than Washington state, the home of its other plants, where union membership is required. Forcing the NLRB to reconsider its actions under a Senate-approved board would only be icing on the cake in a similar ruling from the Supreme Court.
The NLRB case might not provide as much fodder for the press as the upcoming gay marriage rulings, but its implications are far-reaching and could have major implications for years to come.
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