President Barack Obama with Richard Cordray after Cordray's confirmation as director of the Consumer Financial Protection Bureau in 2013.Ron Sachs/CNS/Getty Images
The tug-of-war between congressional Republicans and President Barack Obama over agency appointees finds a new mediator on Jan. 13: the Supreme Court. In an unusually lengthy, 90-minute oral argument, the court will hear not only from the litigating parties but also from 45 Republican senators concerned about presidential overreach in National Labor Relations Board v. Noel Canning.
As with most Supreme Court cases, the underlying legal question — whether Obama lawfully appointed three officials to the National Labor Relations Board (NLRB) two years ago — is quite narrow. The ruling, however, could alter the constitutionally prescribed balance of powers.
On Jan. 4, 2012, following a regular session of Congress but during a series of “pro forma” Senate meetings intended to prevent a formal recess, the president named three members to the NLRB. In the preceding months, Senate Republicans lacking supermajority power had blocked his previous nominations, leaving the labor board unable to conduct business for lack of a quorum. Filibusters had similarly left dozens of federal judgeships vacant and stopped the appointment of Richard Cordray to direct the Consumer Financial Protection Bureau. (He was recess-appointed on Jan. 4, 2012.)
The following month, restored to a full five members, the NLRB affirmed a Washington state ruling that Noel Canning, a unionized soda-bottling company, had violated its contractual promise to pay 40 cents more per hour to employees. Disgruntled by this outcome, Noel Canning took the case up to the conservative Court of Appeals for the D.C. Circuit — and invoked a new, winning argument: the president’s January appointments had been unconstitutional, so the board had not in fact achieved a quorum and had no right to decide cases.
The Constitution empowers the president “to fill up all Vacancies that may happen during the Recess of the Senate,” but what does this long-disputed Recess Appointments Clause mean?
In the case before the justices, Noel Canning and Republican amici, or “friends of the court,” contend that a true “recess” occurs only between formal sessions of the Senate — in the absence of any meetings — and that intersession presidential appointments should fill only vacancies that literally arise (“happen”) during such recesses. According to the brief submitted by Senate Minority Leader Mitch McConnell, R-Ky., and his allies, the Senate has a fundamental right to define “recess” and “withhold its consent” to block the confirmation process.
It’s about “the role of the Senate to make its own rules rather than the White House making the decision,” Don Stewart, spokesman for McConnell, said in a telephone interview.
Opposing this view, the Obama administration and allied amici argue that “recess” should be construed more broadly, so that temporary appointments can be made when the Senate is unavailable, or unwilling, to put nominees to a vote. Otherwise, executive agencies could be rendered leaderless for long periods of time.
“It’s not an accident that it arose in the context of appointments to the NLRB, which have been increasingly contentious over the last couple of decades, and (given) that the Senate would not confirm new nominees as old members’ terms expired,” said Craig Becker, a onetime recess appointee to the labor board and an attorney at the AFL-CIO union confederation, whose Teamsters local represents the Noel Canning employees.
Although the sides have lined up predictably in this case, the issue is not necessarily a partisan one. Presidents of both parties going back to 1860 have made recess appointments, and the Senate Democrats in 2007 convened pro forma sessions in order to block recess appointments by Republican President George W. Bush. Over the course of his presidency, Bush made 171 such appointments, compared with Obama’s 32.
Predictions are split on how the court will rule in Noel Canning — that is, how broadly it will define “recess.” Observers are particularly interested in whether pro forma Senate meetings preclude a true recess, a question raised independently by the justices. A narrow interpretation of the Recess Appointments Clause could invalidate hundreds of appointments and thousands of administrative and court decisions. But before the NLRB and other bodies, “in lots of cases, the parties (will have) accepted the decision,” avoiding the need for rehearing, Becker said. (The labor board would not comment on Noel Canning.)
Because Senate Democrats in November adopted the simple-majority cloture vote for many presidential nominations, thus allowing up-or-down confirmation on potential agency administrators, there now seems to be less at stake in Noel Canning. “But if I were on the court, I’d try to figure out some way to avoid the issue,” said Professor Samuel Estreicher of New York University School of Law.
“It’s been useful for (the Recess Appointments Clause) to be somewhat ambiguous. The president needs to be able to figure out executive appointments — he needs to be able to figure out his own team — and it would be impractical to have an all-or-nothing rule.”