In January 2012, President Obama appointed three people to the National Labor Relations Board (NLRB), which is the federal regulatory board that determines whether or not certain labor practices have been unfair. Since 2008, it had been without the three of the five members that are required to conduct business. Just a month after the new appointments, the board determined that a bottling firm, Noel Canning Company, had committed an unfair labor practice in its dealings with the Teamsters Union. The company appealed the NLRB’s decision to the D.C. Circuit Court of Appeals, maintaining that President Obama’s appointments were unconstitutional and, therefore, the board was actually without the number of members necessary to act when it rendered its decision. Noel Canning claimed that the president had misused the recess appointment power. The D.C. Circuit agreed with Noel Canning and the NLRB appealed to the Supreme Court.
It is important to understand the history of the recess appointment power. Normally, the Constitution requires that presidential appointments be approved by the Senate, thus serving as an important check on executive power. However, the Constitution also provides that “the President shall have the Power to fill up all Vacancies that may have happened during the Recess of the Senate…” [Article II, Sec. 2, clause 3]. It is generally agreed that the Founders provided the president with this recess appointment power anticipating that vacancies could arise while the Senate was not in session and, given the difficulty of travel then, that considerable time could pass before the Senate could be expected to reconvene. In fact, in our early history, Congress often was not in session for months at a time.
The first question the Supreme Court must answer in NLRB v. Canning is what constitutes a “recess?” There is no doubt that the term includes the traditionally designated breaks between one called session of Congress and the next called session. Each Congress spans two calendar years. For example, we are now half way through the 113th Congress. The first session began in January 2013 and the second began in January 2014. Suspension of work between these sessions is often called an inter-session recess; that is, a break between sessions. Did President Obama’s appointments occur during such a recess? The answer is no.
But, does that settle the case?
Not according to the NLRB and its legal counsel. They argue that recess should be given a more expansive meaning. The Senate ought to be regarded as in recess whenever there is a break in the activity of the Senate even if it occurs within a called session. Obama’s appointments might be viewed as having been made during an intra-session recess were it not for the fact that the Senate took steps to remain technically “in session” by holding short meetings without business. Members did this precisely to avoid a presidential grab for power by making appointments during these breaks. The logic is undeniable: If the Senate stays in session it cannot be in recess. This, incidentally, is in accord with the position taken by Senate majority leader Harry Reid when he opposed President Bush’s attempts at recess appointments in 2007.
Obama’s appointments also face another problem. A proper reading of the recess appointment provision seems to require that the vacancy itself must have arisen during the recess. Obama’s openings occurred before any interval he can claim as a recess.
In summary, the president’s appointments were not made during a traditional recess, nor during a gap within sessions. In addition, the Senate specifically took steps to assure that it remained in session, and furthermore, the vacancies themselves did not occur during a legitimate recess. Thus, President Obama loses on all counts.
As a last resort, the NLRB and the Obama administration argue that Senate Republicans were stubbornly refusing to act on the president’s appointees using Senate rules and, therefore, that their obstructionism justified his unilateral action. Though this rationale may square with his own inflated view of presidential power, it clearly was not the view adopted by the Founding Fathers. The Constitutional provisions they wrote on presidential appointments can be summarized in one sentence: Senate approval of presidential appointments is the norm and the recess appointment can only be the rare exception.
Noel Canning Company should win and, as a result, executive power will be reined in. Out of gratitude for that possible reasonable result, those who love liberty should utter a loud, “Amen.”