Today, the United States Supreme Court handed down its decision in NLRB v. Noel Canning. The Court invalidated three of President Obama’s appointments to the National Labor Relations Board (NLRB), an administrative body that regulates labor disputes and that has become a hotbed of bipartisan struggles over the roles and powers of labor unions.
On its surface, the decision was unanimous, as all nine of the justices agreed that President Obama’s appointments, made during a period when the Senate was was holding only pro forma sessions where no business was transacted, did not fall within the President’s recess-appointment power. The Court reasoned that, although the government argued that the Senate was “functionally” in recess during this period, only the Senate’s incapacity to participate in the appointments process triggered the President’s recess-appointment power, not its unwillingness. The implication in blunt political terms is that the Court unanimously agreed that partisan gridlock in the Senate doesn’t trigger the President’s recess-appointment power, period.
In spite of the Court’s unanimity on this point, sharp divisions emerged in a concurrence authored by Justice Scalia and joined by Chief Justice Roberts and Justices Thomas and Alito. The majority held that the President’s recess-appointment power encompassed both recesses that occur between the annual sessions of the Senate and recesses “of substantial length” that may occur during an annual session of the Senate. It defined “substantial length” as recesses of greater than 10 days, except in “some very unusual circumstance” where the President may need to make appointments more quickly and where the Senate is institutionally unable to participate. The majority also held that the President’s recess-appointment power applied to vacancies that opened up during a recess as well as those that existed before the recess began.
The concurring justices argued that the President’s recess-appointment power should be much more narrow, existing only during the inter-session recess and applying only to vacancies that opened up in that period. They argued that the majority’s broader interpretation “sweeps away the key textual limitations on the recess-appointment power.”
The political roots of this dispute are not hard to see. Recess appointments have developed an increasing appeal over the last two decades as senators from both parties have used institutional rules to prevent some nominees from ever getting a vote at all. As a result, large numbers of regulatory and judicial positions have sat empty for extended periods, with resulting bureaucratic gridlock and overloaded judicial dockets. Particularly in the bureaucratic realm, some senators have viewed this as a feature rather than a bug, as leaving a sufficient number of positions empty in a body like the NLRB may prevent the body from acting at all.
The net effect of Noel Canning will probably be to leave this dysfunction in place. Even as the majority affirmed a broader interpretation of the President’s recess-appointment power, it acknowledged that the Constitution bars the Senate from recessing for more than three days without the consent of the House. Since only a ten-day recess triggers the President’s power to make recess appointments and since the majority agreed that the Senate’s pro forma periods don’t count as recesses, the Court’s decision will continue to allow senators to block votes on nominees by using Senate rules such as anonymous holds and filibusters and supported by allies in the House withholding consent for an extended Senate recess.
Given that all of the likeliest scenarios for the 2014 midterm elections indicate that Republicans will continue to control the House and may capture the Senate, today’s Court decision deals a major blow to President Obama’s pledges to use executive actions to circumvent Congress for the remainder of his term.
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Jason is an attorney practicing criminal law, civil litigation, and administrative law. Jason formerly worked as a Resident Instructor of International Relations at Creighton University, focusing on civil-military relations and national security strategy. Jason also served 15 years in the United States Air Force, including service at USSTRATCOM, America’s nuclear-weapons command.
Jason lives in Minnesota with his wife, three sons, three dogs, and three cats.