By Alicia Bannon
Counsel for the Brennan Center’s Democracy Program

Bannon AliciaThurgood Marshall, Alan Greenspan, and Dwight Eisenhower aren’t often listed together in the same sentence.  But all three, along with thousands of other judicial and executive officers throughout our nation’s history, received presidential appointments that would be illegal under a narrow reading of the Constitution’s “Recess Appointments Clause” currently being considered by the Supreme Court.

The case, National Labor Relations Board v. Noel Canning, which is being argued today, has the potential to profoundly alter the balance of power between the president and the Senate in the appointments process, with major implications for the functioning of our democracy.

As the Brennan Center explained in a recent analysis, Noel Canning concerns the scope of the president’s recess appointment power, by which the president can make temporary executive and judicial appointments during Senate recesses without Senate confirmation.  These appointments expire either at the end of the Senate’s next session or when a nominee is confirmed.  Noel Canning reviews a decision by the D.C. Circuit Court of Appeals that interpreted this recess appointment power narrowly.

The specific legal questions in Noel Canning are complex, and neither the text of the Recess Appointments Clause nor its “intent” is a model of clarity.  In hearing a challenge to a decision by the National Labor Relations Board (NLRB), which relied upon recess appointments to maintain its quorum, the Supreme Court will consider three questions:

1.)    Do recesses that take place during the Senate’s annual sessions qualify as a “recess” for purposes of the recess appointment power?
2.)    Is the Senate in recess if it is holding “pro forma” sessions where it does no business? and
3.)    Can vacancies that opened before a recess began be filled using recess appointments?

Answering no to any of these questions would dramatically narrow the recess appointment power, with the potential to substantially weaken the president’s ability to execute the law and keep our government working.

Our agencies and courts cannot function without people to keep them running.  Presidents throughout our nation’s history have relied on recess appointments to keep the government functioning when the Senate was unable to provide its advice and consent on nominees, for reasons ranging from lengthy holidays to minority obstruction through the filibuster.  While incomplete record-keeping makes it impossible to identify every appointment that would have been illegal under the narrow interpretation being considered by the Supreme Court, such appointments go back at least as far as James Monroe, and may date all the way back to George Washington and James Madison.

In recent years, recess appointments have played an important role in keeping the agencies functioning in the face of Senate obstruction of the confirmation process.  According to the Congressional Research Service, nearly half of all cloture motions ever filed or reconsidered on nominations were made from 2009-2013.

The appointments at issue in this case are a good example.  The NLRB has seen a long history of obstruction around nominations—by both Democrats and Republicans—in efforts to deny the agency the three-member quorum it needs to resolve disputes.  If President Obama had not repeatedly exercised the recess appointment power to maintain an NLRB quorum, its operations would have been paralyzed for approximately two years during his presidency.  In fact, without recess appointments, the NLRB would have lacked a quorum for 2,885 days since 1988– almost eight years.  Instead, during these periods, the agency issued 4,240 decisions.

Of course, recent changes to the filibuster have changed the confirmation landscape and lessened the urgency around recess appointments, at least temporarily.  In November, Senate Democrats changed the filibuster procedure to require only a majority vote to end debate regarding executive and judicial nominees (other than Supreme Court justices).

Yet recess appointments continue to be important.  New obstruction tactics are already taking hold. Likewise, a future hostile Senate majority may one day play a similar role in refusing to put nominees to a vote in an effort to sideline the president’s capacity to execute the law.  If the Supreme Court follows the lead of the D.C. Circuit and substantially narrows the recess appointment power, our democracy will lose an important tool for ensuring a functioning government.

Alicia serves as Counsel for the Brennan Center’s Democracy Program, where her work focuses on judicial selection and promoting fair and impartial courts.

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