Justices to Decide the Scope of Recess-Appointment Authority

Constitutional case tests presidents' power to appoint.

, The National Law Journal

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The Obama administration and its supporters claim James Madison, Alexander Hamilton, Thomas Jefferson and Noah Webster. Its opponents, including Senate Republicans, also tout Madison and Hamilton, George Washington and Samuel Johnson.

History and dictionaries are the weapons of choice in a major constitutional battle between the administration and the U.S. Senate over the president's power to make appointments during recesses of that legislative body. And not surprisingly, each side sees in the writings of those historical figures evidence supporting their arguments.

The U.S. Supreme Court on Jan. 13 will take a rare look at the founders' intentions and the meaning of the words in the recess-appointments clause during arguments in National Labor Relations Board v. Noel Canning. Stemming from a commonplace labor dispute, the case has huge implications for future presidents and the Senate itself.

The challenge pits presidents' interest in ensuring the continued functioning of the government — the main purpose of the clause — against the Senate's obligation to give advice and consent to nominations — a key element of the Constitution's checks and balances. And each side claims the other threatens to upset the Constitution's carefully drawn balance of powers.

Constitutional theory aside, the outcome could reverse more than a century of practices. The administration has told the court that at least 14 presidents collectively have made at least 600 civilian appointments (and thousands of military ones) under an understanding of the recess clause rejected by the lower appellate court.

For Constitution nerds of all kinds, the case is a feast for competing approaches to constitutional interpretation. In amicus briefs, blog posts and law review articles, the recess-appointments clause is the focus of originalists, nonoriginalists, textualists and purposivists. And, as the high court case itself shows, it is also another front in ongoing conflicts between labor and management over the direction of the National Labor Relations Board (NLRB).

"I think it's just a mess that [the justices] want to step into this," said longtime Senate and constitutional scholar Michael Gerhardt of the University of North Carolina School of Law. "It's designed for the political bodies to deal with and it's not something courts would necessarily be better able to deal with."

However, the justices have stepped into it by agreeing to review two issues that the Obama administration lost in the U.S. Court of Appeals for the D.C. Circuit, and a third issue that the appellate court did not address.

The appellate court ruled in an appeal by Noel Canning, a Yakima, Wash., soft-drink bottler and distributor, which, the NLRB found, had committed an unfair labor practice in contract negotiations with Teamsters Local 760, also a party in the high court case.

The appellate court held that President Obama's appointment of three new members to the NLRB on Jan. 4, 2012, violated the recess-appointments clause because the Senate was not in recess. The lawmakers had adjourned immediately after the start of the second session of the 112th Congress on Jan. 3, 2012, but had agreed to reconvene for a series of three-day, pro forma sessions, "with no business conducted" between Jan. 3 and Jan. 23, 2012. A lone senator was present to gavel in and out each pro forma session.

The recess-appointments clause 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."

THE QUESTIONS

The justices have agreed to decide:

• When does "the Recess" of the Senate occur? Is it only between the two annual sessions of a Congress, or can it occur during a session? The appellate court said it is only between the two annual sessions.

• When does a vacancy "happen" for purposes of the recess-appointment power? Must it happen during the recess, as the appellate court held, or may it be a vacancy already existing when the recess occurs?

• And, finally, may the president make recess appointments when the Senate is convening every three days in pro forma sessions?

"The D.C. Circuit opinion was very broad and basically would, if adopted, in effect hold most past recess appointments as invalid and would limit what presidents may be able to do in the future," Gerhardt said. "One big question for the Supreme Court is: 'What do we think about going that broadly or is there a way to rule more narrowly?' There are far more ways to rule more narrowly."

To decide that the D.C. Circuit was right on when a vacancy may "happen" would require overturning the practice going back at least to President James Madison of filling existing vacancies during a recess, said Edward Hartnett of Seton Hall University School of Law. "You're talking about a very, very long time."

Harnett, whose 2005 law review article on the clause has been cited by both sides in the case, added that to affirm the appellate court's ruling that recesses occur only between sessions "is less dramatic, but still pretty big. We know intrasession appointments have occurred since the first President Johnson's administration. The justices would be saying we've been wrong since then."

And some of those appointments were federal judges, including Supreme Court justices, Gerhardt noted. "What happens to those? Was everything [Justice William] Brennan did unconstitutional?"

Gerhardt and Hartnett agree a narrower approach would focus on whether the 2012 pro forma sessions actually were a recess.

The administration argues they were because the Senate itself said no business was to be conducted and the Senate was unavailable for communications from the White House. A subsequent Senate order, it adds, even called the period a "recess." Jones Day's Noel Francisco, representing Noel Canning, countered that the Senate has used pro forma sessions for various constitutional purposes since at least the 1850s. "That long-standing practice is proper, given that the Senate is fully capable of conducting Senate business at each pro forma session. It is, moreover, the Senate, not the President, that has constitutional authority to decide whether or not it is in session, and the Senate explicitly concluded it was in session here."

The justices would not have decided the two history-ladened questions decided by the D.C. Circuit, Hartnett said, if they affirmed by saying the following: If the Senate has somebody on the floor who gavels the Senate in and out of session and says the Senate is in session, then it is in session and these particular appointments are invalid. "But to reverse, they've got to reach all three questions raised," he said. "You need all three to make the appointments valid."

No one is certain what the justices will do in the end. The D.C. Circuit decision, hailed by some for its originalist approach, could appeal to the high court's two originalists, justices Antonin Scalia and Clarence Thomas. But they also are rather strong supporters of executive power. The administration's arguments that history and practice, as well as text, matter here could draw such justices as Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor.

"This likely will be decided by Kennedy and Roberts," Gerhardt predicted. "But most of the justices will have to grapple with what Pandora's box they open if they go one way or another."

Contact Marcia Coyle at mcoyle@alm.com.

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