A Win, But a Major Missed Opportunity: NLRB v. Canning

To expand on Ilya’s earlier post, the Supreme Court today did indeed check President Obama’s unprecedented expansion of his recess appointments power when in January 2012 he filled three vacancies on the National Labor Relations Board with nominees that the Senate, then in “pro-forma” session, had to that point refused to confirm. In NLRB v. Noel Canning, the Court ruled unanimously in upholding the unanimous January 2013 decision of the D.C Circuit, which had vacated an NLRB order against the Noel Canning company, finding the three appointments to be unconstitutional. At issue, therefore, was the scope of president’s recess appointments power, his power “to fill up all Vacancies that may happen during the Recess of the Senate” by granting temporary commissions.

That power, however, is subsidiary to the president’s main appointments power, which is to make major appointments to his administration only “by and with the Advice and Consent of the Senate.” It was granted because, for much of our history, the Senate was in session only during certain periods of the year. If important vacancies should “happen” when the Senate was not in session, the president would be able to fill them so that the business of government could continue. Recess appointments were thus the exception, not the rule. In particular, the power was not meant to enable the president to make an end-run around the advice and consent of the Senate.

Unfortunately, in writing for the Court today, Justice Breyer has made a hash of Judge David Sentelle’s well-argued opinion below, as Justice Scalia makes clear in his concurrence for himself, Chief Justice Roberts, and Justices Thomas and Alito. As Scalia writes, the Recess Appointments Clause restricts the president’s power in two main ways. First, “it may be exercised only in ‘the Recess of the Senate,’ that is, the intermission between two formal legislative sessions. Second, it may be used to fill only those vacancies that ‘happen during the Recess,’ that is, offices that become vacant during the intermission.” The text is clear, Scalia says, and both conditions were clearly understood at the founding. But, he continues:

Today’s Court agrees that the appointments were invalid, but for the far narrower reason that they were made during a 3-day break in the Senate’s session. On its way to that result, the majority sweeps away the key textual limitations on the recess-appointment power. It holds, first, that the President can make appointments without the Senate’s participation even during short breaks in the middle of the Senate’s session, and second, that those appointments can fill offices that became vacant long before the break in which they were filled.

What was Breyer’s rationale for so watering down the clear constitutional text and so expanding the president’s power? To trump the text he offers what can only be called a tendentious reading of historical practice, to which Scalia answers: “What the majority needs to sustain its judgment is an ambiguous text and a clear historical practice. What it has is a clear text and an at-best-ambiguous historical practice.” Indeed,

The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments. Henceforth, the Senate can avoid triggering the President’s now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted. How this new regime will work in practice remains to be seen.

Scalia concludes sadly that today’s decision “will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers”—just what we need as the House considers whether to bring suit to try to check an increasingly out-of-control presidency. The decision today was a win, but it was also a major missed opportunity to restrain a power that for too long has been abused, flagrantly in this case. At least it illustrates, as we look to future elections, how important a question who sits on the Court is.