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

Alicia Bannon

Alicia Bannon

On June 26, the Supreme Court invalidated three of the president’s appointments to the National Labor Relations Board.  The case, National Labor Relations Board v. Noel Canning, dealt with the president’s constitutional power to make recess appointments.  The decision heralds a shift in power to the Senate in the appointments process—making it even more important for the Senate to reform its rules and practices so that vacancies are filled in a timely manner and our courts and agencies are fully staffed.

Noel Canning started as a collective bargaining dispute between a Pepsi bottler and the Teamsters.  It turned into a blockbuster case about executive power, however, after the D.C. Circuit decided that three of the NLRB members who had ruled on the dispute had been unconstitutionally appointed by President Obama in 2012.

Noel Canning turned on the scope of the president’s constitutional power to make temporary appointments to fill executive and judicial branch vacancies when the Senate is in recess.  Throughout our nation’s history, recess appointments have helped the government run smoothly when the Senate was unable to confirm nominees—including in recent years when the filibuster and other forms of Senate obstruction of the confirmation process would have otherwise left agencies like the NLRB without a quorum.  As the Brennan Center detailed in a recent white paper, thousands of temporary appointments throughout history would have been illegal under the D.C. Circuit’s reasoning.

The Supreme Court ruled unanimously that the president’s NLRB appointments were invalid.  Importantly, a five-justice majority, in an opinion authored by Justice Breyer, rejected the D.C. Circuit’s analysis and affirmed the president’s historically broad power to make recess appointments regardless of the timing of a Senate recess or when a vacancy opened.

Yet while the majority recognized the president’s power to make recess appointments, it also ruled that the Senate could use “pro forma” sessions—where the Senate calls itself to business for a few seconds and conducts no business—to block the president from actually utilizing this power.  Putting form over substance, the Court ruled that pro forma sessions should be treated as ordinary Senate sessions.  As a result, it concluded that there had not been a sufficiently lengthy winter recess to permit the appointments of the NLRB members in 2012.

Absent from the Court’s opinion was an acknowledgment of the added importance that recess appointments have taken on in recent years because of Senate obstruction of the confirmation process.  Indeed, the Court made the remarkable observation that “[m]ost appointments are not controversial and do not produce friction between the branches”—despite record filibuster levels prior to last year’s reforms and continued obstruction, including high levels of executive branch vacancies.

Nor did the Court acknowledge the troubling gamesmanship underlying pro forma sessions, which can be chained together indefinitely to repeatedly interrupt a Senate recess such that it is too short to qualify for recess appointments.  Harry Reid first used these sessions in-name-only in 2007, to block President Bush from making recess appointments.  They were used again during the Senate’s 2011-12 winter recess, after the House of Representatives refused to allow the Senate to adjourn for more than three days (pursuant to the Constitution’s Adjournment’s Clause), in an effort to keep President Obama from using the recess appointment power.  Either house of Congress can force the use of pro forma sessions by refusing to consent to adjourn for more than three days, effectively eliminating the president’s ability to make recess appointments while taking what is in reality a lengthy recess.

By opening the door to obstruction of recess appointments, Noel Canning makes it even more important for the Senate to reform its rules and practices so that nominees are considered in a timely fashion.  Senators should refuse to consent to pro forma sessions when they are being used to undermine the president’s recess appointment power, demanding that the Senate either hold real sessions or go into a true recess.

Even more importantly, the Senate should follow up on its important reforms to the filibuster to address the continued sources of obstruction in the confirmation process.  Reducing opportunities to waste floor time when considering nominees—including requiring a “use it or lose it” standard where senators must use allocated floor time for debate or lose the allotted time—is an important first step.  Reforming the blue slip process, which allows home-state senators to keep judicial nominees from moving forward, is another.

Without such measures, Noel Canning may herald even greater government dysfunction in the future.

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