Separation of powers between the executive and legislative branches took the forefront during this morning’s Supreme Court argument in NLRB v. Noel Canning, which involves the issue of whether President Obama’s recess appointments to the National Labor Relations Board were valid. In Noel Canning the Court of Appeals for the District of Columbia Circuit held that President Obama’s intrasession recess-appointments to the NLRB were unconstitutional because they were made without the advice and consent of the Senate. Under the court’s ruling, the president can only make recess appointments when the Senate is in recess between sessions of Congress, and only if a vacancy has occurred in that same time period.
This morning’s argument meandered among the three issues to be decided by the Court, but the questions posed and the litigant’s themes suggest what appears to be the real issue for the Court to decide:
did the Founding Fathers intend the Recess Appointments Clause to give the president the power to counteract an intransigent and/or unavailable Congress or did they intend it to be a very limited exception to the Senate’s check on presidential appointments?
In arguing that the recess appointments power should be a tool available to the president when the Senate drags its feet, Solicitor General Donald B. Verrilli, Jr., representing the Executive (including the NLRB), asserts, despite challenges by several justices, that the Executive’s position is consistent with the Recess Appointment Clause’s original purpose:
Justice Kagan: General, would you agree that this clause now is not mostly used to deal with emergencies arising from congressional absence? That most modern Presidents – – and I say this sort of going – – going back to President Reagan, Presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved?
General Verrilli: … I don’t think its original purpose has disappeared. I mean, the NLRB was going to go dark. It was going to lose its quorum.
Justice Kagan: Yes, as a result of congressional refusal, not as a result of congressional action.
Justice Alito: But you are making a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not. You’re just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the President must be able to fill those – – fill those positions. That’s what you’re arguing. I don’t see what that has to do with whether the Senate is in session.
General Verrilli: Well, I do – – I think this – – I think the recess power may now act as a safety valve given that intransigence, and that is actually quite consistent – –
Justice Ginsburg: But it isn’t – – it isn’t tied then to the availability of the Congress, availability of the Senate. I think you said throughout your brief that the rationale for the recess power is the President must be able to have the government functioning and staffed even though – – although the Senate isn’t – – isn’t around. But now the – – you seem in your answers to be departing from the Senate not available and making quite another justification for this.
Accordingly, to give the Recess Appointments Clause its broadest applicability, General Verrilli argued that the term "recess" and the phrase "the recess" should encompass recesses that occurred during a session of Congress, and not just in between sessions of Congress.
Moreover, General Verrilli asserted that the Senate should be deemed to have been in recess despite the pro forma sessions because the Senate issued a formal order that no business shall be conducted. However, General Verilli conceded that if the order was written to state "it is not anticipated that any business will be conducted," "that’s a different case and…a significantly harder case for the Executive." As such, Chief Justice Roberts noted that it "suggests that you’re just talking about a couple of magic words that the Senate can just change at the drop of a hat." Justice Kagan added "that you’re asking us to peg this on a formality that the Senate could easily evade, and that suggests that it really is the Senate’s job to determine whether they’re in recess or whether they’re not."
Justice Breyer highlighted another problem created by the Executive’s position regarding the pro forma sessions:
Justice Breyer: So what do you say about the Twentieth Amendment, which says that that January 3rd was a meeting? Are you saying they violated the Twentieth Amendment? January 3rd. This says the Congress of the United States shall meet on January 3rd every year, unless they appoint a different day.
General Verrilli: Yes
Justice Breyer: And they haven’t. And, therefore, they met in pro forma session. Or do you think it wasn’t a meeting? And what do you think about the other part of the Constitution which says they can’t adjourn for more than 3 days without the approval of the House, which they didn’t have. So are you saying that the Senate violated those other two amendments of – – the two parts of the Constitution, or are you saying that they have different meanings in the three parts?
General Verrilli: I think our view is that it’s hard to see how the – – what the – – what the Senate did with pro forma sessions complies with either and – –
Meanwhile, Noel J. Francisco, arguing on behalf of Noel Canning in defense of the D.C. Circuit’s decision, described the recess appointments power as a contingent one consistent with the Senate’s right not to confirm any presidential appointees:
the recess appointment power … arises only when the Senate chooses to trigger it by ending its session and beginning its recess. So the Senate always has the power to prevent recess appointments.
The Constitution, however, gives the President corresponding powers. If the President thinks that the Senate is being derelict in its duties, he can convene an emergency session, and he can force the Senate to consider his nominees.
And if they refuse, he can subject them to withering criticism for being derelict in their responsibilities. But one – – the one thing that the President may not do is force the Senate to act against its will, nor should the President be permitted to do – – and run around the Senate’s refusal to act, because that conception of the Recess Appointments Clause is at war with advice and consent itself.
Accordingly, Mr. Francisco argues that the correct definition of "recess" is "the period between when the Senate says that it is ending its session through an adjournment sine die, and the period when it begins its next session…"
When faced with the evidence of how the recess appointments power has been used, Mr. Francisco said that the historical practice is not relevant if it directly contradicts the Constitution:
The political branches of the government have no authority to give or take away the structural protections of the Constitution. They don’t exist to protect the Senate from the President or the President from the Senate.
These are liberty-protecting provisions that protect the people from the government as a whole. So if the Constitution is quite clear as to what those structural protections are, but the political branches, assuming for the sake of argument, have conspired to deplete them, that is illegitimate, and it should be rejected by this Court.
As such, Mr. Francisco asserted that "the Recess Appointments Clause is not about timing, it’s not a temporal issue; it’s about procedure. What it does is it creates a contingent power that arises when the Senate decides to trigger it."
Miguel Estrada argued on behalf of 45 Senate Republicans as amici curiae, and asserted that the Senate gets to decide whether the Senate is in recess and "the Senate by the design of the Constitution, the Appointment Clause, the primary method of appointment, has an absolute veto over nominations." Accordingly, Mr. Estrada argued that "[t]here is no power in the Constitution to use the Recess Appointments Clause to overcome the opposition of the Senate to the president’s nominees."
In the event the Court affirms the D.C. Circuit’s decision and invalidates President Obama’s recess appointments, "hundreds" of Board decisions would be affected, but both sides agree that the Court’s decision would not invalidate "the actions of [all recess] appointees…going back however far you want to go back."