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In a unanimous decision, the Supreme Court on Thursday limited the president’s power to make recess appointments for vacancies in the executive branch. The case, National Labor Relations Board v. Noel Canning et al., specifically related to three appointments Obama made in 2012 to the NLRB while the Senate was in pro forma sessions, convening every three days. As the Court sees it, for the Senate to truly be in recess, it would have to be out for at least 10 days.
The majority opinion in the case was written by Justice Stephen Breyer, which was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. A concurring opinion written by Antonin Scalia was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.
The Court’s summary states (emphasis ours) “The Recess Appointments Clause empowers the President to fill existing vacancy during any recess — intra-session or inter-session — of sufficient length.” But the question here is whether the Senate was actually in recess. “A Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President’s recess-appointment power.”
As the Court holds, the pro forma sessions like the one Obama used to appoint the NLRB members are full sessions, as long as that’s what the Senate says. Or, as the Court puts it, “the Senate is in session when it says that it is.”
“We conclude that we cannot ignore these pro forma sessions,” Breyer wrote.
As Tom Goldstein writes at SCOTUSblog, the decision significantly limits presidential power. While the president can still make recess appointments without Senate confirmation when the Senate says it’s in recess, the House or Senate “can take the Senate out of recess and force it to hold a ‘pro forma session’ that will block any recess appointment.” Which means, the party in power of the House or Senate will be able to block recess appointments easily.
There is a lot in the balance here, from what the decision means for NLRB decisions since the appointments were made to what it means for the NLRB itself. And in his opinion, Breyer made it clear that he knows the stakes.
“We have not previously interpreted the Clause,” Breyer writes, referring to the Recess Appointments Clause in Article II of the Constitution, “and when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.”
In case you’re wondering, here’s that clause in full:
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.
In the view of the Court, as written by Breyer, “pro forma sessions count as sessions, not as periods of recess. We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here.”
In his concurrence (which was joined by Roberts, Thomas, and Alito), Scalia makes the case that the Court’s opinion was too narrow. Rather than allow presidents to make appointments during breaks 10 days or longer, Scalia, and the Court conservatives who joined his opinion, hold that a “recess” is just the period between two sessions of Congress.
I would hold that “the Recess” is the gap between sessions and that the appointments at issue here are invalid because they undisputedly were made during the Senate’s session. The Court’s contrary conclusion — that “the Recess” includes “breaks in the midst of a session,” ante, at 9 — is inconsistent with the Constitution’s text and structure, and it requires judicial fabrication of vague, unadministrable limits on the recess-appointment power (thus defined) that overstep the judicial role.
Scalia and his conservative colleagues hold that a “recess” is just the period between two sessions of Congress, not something that’s just a 10-day break or longer. They take issue with a “colloquial” definition of “recess” that’s used in cases that, as they see it, are really just adjournments during a session. Using “recess” during these times “leaves the recess-appointment power without a textually grounded principle limiting the time of its exercise,” Scalia writes.
Scalia writes that the Court’s decision risks transforming “the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates.”
Breyer strongly disagreed, considering the history of recess appointments granted during a broader range of Senate recesses. “Justice Scalia would render illegitimate thousands of recess appointments reaching all the way back to the founding era,” Breyer wrote. “More than that: Calling the Clause an ‘anachronism,’ he would basically read it out of the Constitution. He performs this act of judicial excision in the name of liberty.”
Senate Minority Leader Mitch McConnell was predictably pleased with the Court’s decision. “The administration has a tendency to abide by laws that it likes and to disregard those it doesn’t,” he said. “I was proud to lead the effort to defend the Senate against the president’s unprecedented power grab.”
But as Scalia writes, recess appointments aren’t just an Obama thing:
The Solicitor General has identified 22 such appointments made by Presidents Harding, Coolidge, Hoover, and Franklin Roosevelt between 1921 and 1944…. Intra-session recess appointments experienced a brief heyday after World War II, with President Truman making about 150 such appointments to civilian positions and several thousand to military posts from 1945 through 1950…. President Eisenhower made only 43 intra-session recess appointments … after which the practice sank back into relative obscurity. Presidents Kennedy, Lyndon Johnson, and Ford made none, while Nixon made just 7…. The practice rose again in the last decades of the 20th century: President Carter made 17 intra-session recess appointments, Reagan 72, George H. W. Bush 37, Clinton 53, and George W. Bush 135…. When the Solicitor General filed his brief, President Obama had made 26…. Even excluding Truman’s military appointments, roughly 90 percent of all the intra-session recess appointments in our history have been made since 1945.
In a statement about the decision, Senate Majority Leader Harry Reid said the opinion makes his recent changes to the Senate’s rules around executive nominees vital. “Without that reform and with today’s ruling, a small but vocal minority would have more power than ever to block qualified nominees from getting a simple up-or-down vote on the floor.”