Last week, in NLRB v. Noel Canning the Supreme Court unanimously invalidated President Obama’s appointment, in early 2012, of three members of the National Labor Relations Board. The appointments occurred during a period when the Senate was conducting virtually no business; it was convening once every three days for a very brief pro forma session. Claiming that the Senate was functionally in recess, the President invoked his constitutional “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.”
Republicans and their allies cried foul, arguing that because of the pro forma sessions, the Senate was not in recess, and that therefore the President’s recess appointment power was unavailable. In last week’s ruling, the Court agreed.
Writing for a majority of five, Justice Stephen Breyer explained that the key was not whether the Senate actually conducted business. He said 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.” Because that standard was met, there was no recess, and therefore the appointments were invalid.
Did the four Justices who did not join Breyer’s opinion think that the appointments were valid? Hardly. Accepting a set of arguments that the U.S. Court of Appeals for the D.C. Circuit had also endorsed, those four, in a concurrence in the judgment by Justice Scalia, offered an extraordinarily narrow reading of the Recess Appointments Clause. In their view, the President may only make recess appointments during a recess between formal sessions of Congress—in modern times, the very brief period at the beginning of each year, when one session ends but before the next one begins on the third of January.Moreover, Scalia argued that even then, the power only applies when the relevant office becomes vacant during the recess itself. In short, four Justices said that the recess appointment power was important when Congress held much shorter sessions due to much longer travel times, but that modern transportation and communications rendered it anachronistic, and thus a virtual nullity.
It is tempting to read Noel Canning as a mere minor setback for the President. The majority preserved the recess appointment power for ordinary recesses, after all. Moreover, now that the filibuster has been eliminated for appointments to the executive branch and the lower federal courts, the President does not need the recess appointment power to overcome a blocking minority in the Senate. But trouble awaits if the majority in the Senate is actively hostile to the President. Thus, even the Breyer opinion could function as a time bomb that may explode as soon as January 2015, depending on the outcome of the upcoming mid-term elections.
The fundamental problem with both opinions in Noel Canning is that they disallow political obstruction in the Senate as the basis for the exercise of the recess appointment power. Yet that analytical move goes largely unjustified, as I shall explain below.
Where Breyer and Scalia Disagreed
Before coming to the problematic shared premise of the Breyer and Scalia opinions, it may be helpful to explore the grounds for their disagreement over the scope of the recess appointment power.
For Justice Scalia, the language of the Recess Appointments Clause, as understood at the Founding, was sufficient to decide the case. The Clause refers to “theRecess,” and so, Justice Scalia contended with citations of the Federalist Papers and other contemporary documents, it meant then—and means now—the recess between sessions, rather than substantial adjournments within a session. Likewise, he argued that a vacancy that “may happen during the Recess” means an office that becomes vacant during the recess.
Justice Breyer did not dispute that Justice Scalia offered a plausible reading of the text of the Recess Appointments Clause. Nonetheless, he argued that there remains ambiguity.
“The Recess,” the majority said, could mean any recess and thus does not rule out the possibility that the term encompasses intra-session recesses. If I say that “the quarterback threw the football to the wide receiver,” I do not thereby imply that the particular quarterback, football, and receiver are in any way unique.
Likewise, Justice Breyer explained that in ordinary usage, even if an office becomes vacant before a recess, the vacancy still can be said to “happen” during the subsequent recess. For example, we might say that hostilities in Afghanistan between U.S. forces and the Taliban happened during the Obama Presidency, even though they originated (and thus also happened) during the Bush Presidency.
The foregoing examples are mine, but they serve to illustrate that the constitutional language is not quite so clear as Justice Scalia thought. Still, even Justice Breyer conceded that if he were writing on a clean slate, he might find that Justice Scalia’s reading of the provisions was the more natural one.
The crucial factor that led Justice Breyer and the majority to conclude that the Recess Appointments Clause covers intra-session recesses and offices that first became vacant while the Senate was open, was history. From at least the early Nineteenth Century, Presidents have used the recess appointment power to fill offices that became vacant before the Senate recessed, and since the practice of intra-session recesses began, presidents have routinely filled vacancies during them. Justice Breyer noted that presidents have made thousands of intra-session recess appointments, and the Senate has acquiesced in both practices.
Faced with this impressive history, Justice Breyer invoked a principle that was captured in a letter by James Madison, the Constitution’s principal author. Madison wrote that it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” In Justice Breyer’s view, the regular practice of intra-session recess appointments and appointments to fill longstanding vacancies had “liquidated and settled the meaning” of the otherwise unclear Recess Appointments Clause.
Because there was no long historical practice regarding pro forma sessions, Justice Breyer and the majority found that the political branches had not reached an historical settlement allowing presidents to disregard such sessions in determining the existence of a recess. Moreover, the majority pointed to constitutional language that gives each house of Congress broad authority over its procedures and timing. Accordingly, the Court deferred to the Senate’s own determination of whether it was in recess.
The Small Practical Difference Between the Breyer and Scalia Approaches
Although the Breyer and Scalia opinions differed over some fundamental interpretive questions, the practical stakes of their disagreement appear to be quite narrow. Breyer’s opinion preserves the President’s ability to fill vacancies on an emergency basis when the Senate is out of session, whereas Scalia’s mostly does not. But given modern communications and transportation, the Senate can be called back into session quickly to confirm government officials in an emergency. Thus, as a practical matter, the Scalia approach would not significantly hamper the government’s ability to function in an emergency.
What if the Senate refuses to confirm particular officials or—as in the recent controversies—any officials because of a political disagreement with the President? Under those circumstances, both the Scalia and the Breyer majority approach would deny the President the power to fill the vacancy. Under the majority approach, all that the Senate needs to do in order to frustrate the President’s ability to make a recess appointment (except on January 2 or January 3, when an inter-session recess necessarily occurs) is to hold pro forma sessions.
To be sure, the Breyer majority opinion allows that it in “some very unusual circumstance,” a very short break—such as the three-day break between pro forma sessions—might trigger the President’s recess appointments power, but the majority hastens to add that “political opposition in the Senate would not qualify as an unusual circumstance.”
Where does that leave the President? Article II, Section 3 gives the President the power to “adjourn” Congress if the two houses disagree about when to adjourn. Suppose that the President’s party controls the House of Representatives, while the opposition party controls the Senate, which refuses to confirm his nominees or to recess. The Noel Canning majority suggests that in these circumstances, the President could simply adjourn Congress and make a recess appointment.
That is not obviously right, because it is unclear from the constitutional text and punctuation whether the President’s adjournment power is completely discretionary or whether it only operates “on extraordinary Occasions.” But even supposing the broader view, what if the opposition party controls both houses of Congress—as happens from time to time and may be true again in just six months? In that case, the Senate can effectively block all presidential appointments for a year at a time. The Court unanimously agrees that the Recess Appointments Clause provides no remedy because, in the words of the majority, “the Recess Appointments Clause is not designed to overcome serious institutional friction.”
The Argument for “Political” Recess Appointments
Both the majority and the Scalia opinion in Noel Canning thus rejected the Solicitor General’s argument that the recess appointment power serves as a presidential counterweight to Senate intransigence. Perhaps the Court was right to reject that proposal, but in my view the Court did not say nearly enough to justify its position.
Essentially, the Court’s argument comes down to this: The Recess Appointments Clause was originally conceived as a backup mechanism for filling vacancies when the Senate was away, not as a mechanism for overcoming political intransigence.
Well, so what? The Fourteenth Amendment’s Equal Protection Clause was originally conceived as a mechanism for securing the rights of previously enslaved African Americans against race discrimination, and in 1872 the Court “doubt[ed] very much whether any action of a State not directed by way of discrimination against [African Americans] as a class, or on account of their race, will ever be held to come within the purview of this provision.” Yet since then, the Court has—quite correctly—invoked the Fourteenth Amendment to invalidate discrimination on grounds of national origin, religion, sex, and sexual orientation.
Likewise, the original purpose of the Commerce Clause—indeed, one of the chief purposes of the original Constitution as a whole—was to discourage interstate trade wars and promote a kind of national free trade zone. And there was a time when the Supreme Court therefore disempowered Congress to enact national laws that aimed at moral wrongs, as when the Court, in 1918, invalidated a federal child labor law. But today, even the conservative Justices accept that laws like the public accommodations provisions of the 1964 Civil Rights Act are valid, even though they have little to do with preventing an interstate trade war.
How do these principles apply to Noel Canning? Despite Justice Breyer’s reliance on historical practice to sustain recess appointments during intra-session recesses and to fill pre-existing vacancies, the majority opinion is largely blind to historical changes in the appointments process as a whole.
Writing in Federalist No. 76, Alexander Hamilton imagined that the role of the Senate in providing advice and consent to presidential nominations was chiefly to ensure the professional qualifications of the office holders. Senate confirmation “would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” Neither Hamilton nor the other framers seem to have imagined that the Senate might reject all nominees to an office simply to block the President from executing the law. Indeed, Hamilton assumed that the Senate would only be tempted to reject a nominee if the Senators thought someone else would do the job better.
Events soon proved the framers to be short sighted. With the emergence of the two-party system in the election of 1796, appointments for many offices became politicized, and they have remained so ever since.
If the Senate may use its advice-and-consent power for political reasons—even though that was not the original purpose of the relevant constitutional provision—why should the President not be permitted to use his recess appointment power for contrary political reasons? The Noel Canning Court does not directly answer that question.
Instead, the Court seems to say that the President would ultimately lose a showdown with the Senate anyway, so he may as well be denied the ability to treat a pro forma session as a de facto recess. Justice Breyer writes that a determined Senate could thwart a President by holding active sessions, not just pro forma sessions.
Perhaps that is right, but the very fact that the Senate held pro forma sessions suggests that the President’s opponents would bear some cost if they held genuine sessions. Ultimately, the Court did not persuasively explain why the Senate should be permitted to turn its confirmation power to political ends but the President should be forbidden from using his recess appointment power to respond in kind.
For now, the damage from Noel Canning will be limited, due to last fall’s filibuster reform. But should Republicans take the Senate and hold the House in the mid-term elections, the case could prove to be an important weapon in their ongoing efforts to hobble the Obama Presidency.