President's Recess Appointments Get Cold Reception at Supreme Court

The Supreme Court heard arguments today over the president's power to make appointments when Congress is in recess, with several justices appearing to be troubled by appointments President Obama made to the National Labor Relations Board (NLRB) in January 2012. The appointments occurred when the Senate was gaveling in and out every three days during a pro-forma session.

Critics say the appointments are invalid because the Senate wasn't actually in recess. At the time, President Obama was frustrated with Senate inaction on his nominees to the NLRB-a federal agency that enforces federal labor law. The board consists of five members appointed by the president and needs three members to constitute a quorum.

Justice Elena Kagan, who was nominated to the bench by President Obama, asked Solicitor General Donald B. Verrilli whether "the question of how to define a recess really does belong to the Senate?" Other justices asked similar questions.

Verrilli responded, "I think the problem with looking at it that way, Justice Kagan, is that's the end of the recess appointment power. You write it out of the Constitution, if you look at it that way, because all the Senate needs to do is stay in pro forma session until 11:59 on January 3, when that term ends and the next term starts."

Justice Antonin Scalia worried about how the actual text of the clause seems to contradict how and when the power has been exercised throughout history.

"What do you do when there is a practice that flatly contradicts a clear text of the Constitution?" asked Scalia.

The text reads "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."

Kagan asked Verrilli if he would agree that the clause is now mostly used not to deal with emergencies arising from congressional absence, but as a way to cope with congressional intransigence, "with a Congress that simply does not want to approve appointments that the President thinks ought to be approved?"

"That makes me wonder," she said, "whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have?"

Verrilli, referring to the case at hand, said that the president had acted in January 2012 because if the NLRB didn't reach a quorum of members it would not be able to function.

"It may be true as a matter of raw power that the Senate has the ability to sit on nominations for months and years at a time, but that is 100 miles from what the framers would have expected."

Justice Samuel Alito was quick to criticize Verrilli saying he was "making a very, very aggressive argument in favor of executive power."

"You're just saying when the Senate acts, in your view, irresponsibly and refused to confirm nominations, then the President must be able to fill those positions."

Chief Justice John Roberts added that the Senate has an "absolute right not to confirm nominees that the president submits." He told Verrilli he was "latching on to the Recess Appointment Clause as a way to combat the intransigence rather than to deal with the happenstance that the Senate is not in session when a vacancy becomes open."

Justice Stephen Breyer targeted the purpose of the Recess Appointment Clause written at a time when Congress left for long periods of time and traveled with horse and buggy. "I can't find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the president."

The case came to the Court after a bottling company, Noel Canning, challenged an adverse ruling by the NLRB. The company argued that the ruling was invalid because the appointments to the board had been invalid. A federal appeals court ruled broadly in favor of Noel Canning, significantly narrowing the President's power.

Today, Noel J. Francisco, a lawyer for the company, said the government's position would eviscerate an important check on executive power "creating a unilateral appointment power available for every vacancy at virtually any time with advice and consent to be used only when convenient to the president."

But Kagan pressed Francisco that his reading of the recess appointment clause differs from how it has been interpreted through history.

"The idea that we would wake up one fine morning and chuck all of that because all of a sudden we happened to read the clause, I mean, that at least needs to be defended," she said.

Francisco responded, "The political branches of the government have no authority to give or take away the structural protections of the Constitution."

Lawyer Miguel Estrada argued on behalf of Senate Republican Leader Mitch McConnell and 44 other Members of the Senate. He told the Justices, "this case fundamentally is about who gets to decide whether the Senate is in recess, the Senate or the President.?"

After arguments McConnell released a statement saying, "the Court today was rightly skeptical of the Solicitor General's inconsistent argument that the Senate is in session if the President wants it to pass legislation he supports, but the Senate is not in session if he wants to circumvent the advice and consent requirement of the Constitution."

Although the administration's position in the case seemed vulnerable, it was unclear how broadly the Court will rule.

The federal appeals court that ruled in favor of Noel Canning issued a very broad ruling. That court held that the recess appointments could only be made during the recess that occurs between the end of one session of Congress and the beginning of the next. The court also ruled that the appointments could only be made for vacancies that occurred during the recess. If the Supreme Court were to adopt that reasoning the president's authority would be narrowed considerably.

The Supreme Court, however, could issue a more narrow ruling only on the question of whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions. Such a ruling would invalidate 100's of actions by the NLRB.

A decision is expected by the end of June.