By William Yeomans,
Fellow in Law and Government at American University
Washington College of Law
Most observers came away from the argument in NLRB v. Noel Canning last week convinced that presidential power would suffer a blow in President Obama’s battle with Senate Republicans over recess appointments. They are almost certainly correct. But the case suggests three broader points. First, Republican obstruction in the Senate knows no limits. By resisting even the least controversial nominees and using obstruction of nominees with the intent to interfere with the basic functioning of government, Republicans forced the President to act. Second, the specific confrontation that led to the case could have been—and should have been—avoided by stronger leadership from the Senate majority and the White House. And, finally, the country is increasingly handicapped by a slavish reverence for the ambiguous words of the Founding Fathers. As a result, the Supreme Court is poised to wade into the middle of a political dispute between the political branches and to reject 200 years of history—during which a functional and practical understanding of the recess appointment power prevailed.
The case arose from the recess appointments of three members of the National Labor Relations Board (NLRB) on January 6, 2012. The appointments were the culmination of a long stalemate over NLRB appointments that threatened to leave the NLRB without a three-member quorum to conduct business. The disabling of the NLRB had long been a dream of Republicans, who couldn’t abide the forum that allowed enforcement of the rights of workers, but could never muster the votes to shut it down. To thwart the President’s ability to make recess appointments, the Republican House refused to assent to the adjournment of the Senate in December 2011. Because the Constitution does not allow adjournments longer than three days without the assent of the other House, the Senate was forced to hold pro forma sessions every three days through the recess. Before doing so, it adopted a resolution stating that it would conduct no business. The President was fully justified in concluding that the Senate was unavailable to process nominations and, therefore, for all relevant purposes, was in recess.
President Obama made the appointments to keep the NLRB functioning. Notably, President Obama has made far fewer recess appointments than his predecessors. President Clinton made 139 and President George W. Bush made 171, but by January 2012 Obama had made only 32.
Recess-appointed NLRB members subsequently voted against Noel Canning, which sought to deny a pay raise in a contract negotiated with its employees. Noel Canning appealed to the D.C. Circuit, where three conservative Republican appointees ruled in its favor, issuing a stunning decision rejecting longstanding historical practice and the consistent interpretation of the recess appointment clause of the Constitution. The court held that the clause permits the president to fill vacancies only during the recess between sessions of Congress and not during the frequent intra-session recesses. It also held that he could fill only vacancies that arose during the recess. Both interpretations flew in the face of longstanding interpretation of the clause by presidents dating back to the 19th century, as well as modern opinions of the Department of Justice’s Office of Legal Counsel.
The language of the recess appointments clause was first called ambiguous by Thomas Jefferson. It states: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate . . . .” The text could be read as the D.C. Circuit read it or it could be read to mean that the President has power during the recess of the Senate (whenever the Senate is in recess) to fill up all vacancies that may happen (regardless of when they happen). The latter reading has formed the basis for hundreds of recess appointments over the past 200 years.
It is true that the original purpose of the constitutional provision was to allow the President to keep the government staffed during the long recesses common when legislators traveled by live horsepower. They generally convened, stayed in session until their business was done and left. There were no intra-session recesses and it was difficult to reconvene. By contrast, today Congress stays in session nearly year round, but leaves for frequent recesses and can return from any part of the country within hours. The President no longer needs to wait long periods before Congress is able to consider his nominees. On the other hand, in a country of over 300 million people that depends heavily on a functioning federal government, it is more important than ever for the government to be staffed.
As polarization and Senate obstruction have increased, the recess appointment power has morphed from a tool to overcome long distances and Senate absence into a tool for Presidents to overcome partisan obstruction. It has become a practical remedy for dysfunction. The jostling between the President and the Senate over the limits of the power presents a classic political dispute that the political branches are fully capable of working out without textual reinterpretation through court intervention.
Unfortunately, the Court cannot duck the issue now because scores of NLRB decisions may be at stake. The case could have been avoided, however, if Senate Democrats had moved sooner to institute rules reform that would have prevented Republicans from filibustering the NLRB appointments. Both Senate Majority Leader Harry Reid and the President were far too slow in recognizing the full depth and harm of Republican obstruction. Because the 60-vote threshold finally has been eliminated for executive branch nominees, the outcome of this case has little immediate consequence. So long as Democrats control the Senate and the majority rules, the President will have little need to make recess appointments.
The recess appointment power was created as a practical remedy to keep the federal government functioning when the Senate couldn’t act. That remains its function today, even though the reason the Senate can’t act has changed. The Court should reject the formalism of the D.C. Circuit and honor the President’s appointments. To do otherwise will exhibit a harmful reverence for the actions of men who over 200 years ago wrote an ambiguous provision addressing a world that no longer exists.