WASHINGTON – The U.S. Supreme Court on Monday, in a classic clash between the Constitution’s text and presidential tradition, struggled with which of the two should prevail in a challenge to President Obama’s recess appointments to the National Labor Relations Board.
National Labor Relations Board v. Noel Canning, 12-1281, is, surprisingly, the first time the high court has examined the meaning and scope of the recess-appointments clause in the Constitution. That clause states: “The President shall have 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.”
At the end of more than 90 minutes of argument, the government, represented by Solicitor General Donald Verrilli Jr., appeared to face an uphill battle in persuading the justices to reverse a broad ruling by the U.S. Court of Appeals for the D.C. Circuit limiting a president’s power.
During the arguments, Verrilli and his two opponents—Jones Day’s Noel Francisco, counsel to Noel Canning, and Gibson, Dunn & Crutcher’s Miguel Estrada, representing Senate Republican Leader Mitch McConnell and other Senate Republicans—offered competing interpretations of the language in the clause and of historical documents by the Constitution’s framers.
The arguments were reminiscent of another recent case in which the justices wrote on almost as clean a slate—the Second Amendment challenge to the District of Columbia’s gun ordinance in 2008′s District of Columbia v. Heller. 554 U.S. 570. Conflicting views of that amendment’s text and history also dominated the justices’ deliberations and final decision.
And, as in the gun case, the recess-clause arguments exposed a divide among the justices on their approaches to constitutional interpretation. Questions from Justice Antonin Scalia, a self-described originalist, revealed his strong belief in the original meaning of the words. Pragmatists, such as justices Sonia Sotomayor, seemed more skeptical of that approach, given the long tradition of recess appointments made contrary to the D.C. Circuit’s interpretation.
Noel Canning, a Yakima, Wash.-based soft drink bottler, had appealed a decision by the labor board that the company had committed an unfair labor practice during contract negotiations with its union. In its appeal to the D.C. Circuit, the company argued that the board had no authority to make its decision because the recess appointments of three of its members, necessary for a quorum, were invalid.
Obama had appointed the three board members on Jan. 4, 2012. The Senate had adjourned immediately after the start of the second session of the 112th Congress on Jan. 3, 2012, but had agreed to reconvene for a series of three-day pro forma sessions, “with no business conducted” between Jan. 3 and Jan. 23, 2012. The president viewed that period as a recess.
The D.C. Circuit held that “the Recess” of the Senate, for purposes of recess appointments, lies only between the biannual sessions of Congress. It also held that the only vacancies to be filled during the recess are vacancies that actually occur during the recess, and not existing vacancies.
The justices agreed to review those two issues and added a third at the request of Noel Canning: whether the brief pro forma sessions constituted a recess.
During Monday’s arguments, Verrilli told the justices that his opponents’ interpretations of the clause “would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington and, going forward, it would diminish presidential authority in a way that is flatly at odds with the constitutional structure the framers established.”
Scalia asked hypothetically, “What do you do when there is a practice that flatly contradicts a clear text of the Constitution? Which of the two prevails?”
Verrilli responded that the practice has to prevail, but before he could finish, Scalia interjected: “So if you ignore the Constitution often enough, its meaning changes?”
Verrilli replied that the practice gives meaning to the text, but he added that the text is not clear in this instance and its meaning has been subject to contention since the first days of the Republic.
He told the justices that the Constitution’s framers were most concerned that Congress not amass too much power and that the executive needed fortification against that possibility. The recess-appointments clause, he said, was the result.
However, Chief Justice John Roberts Jr. said, “But the compromise they settled on in moving away from that is that the president will nominate and the Senate, if it so chooses, can confirm a nominee.” Roberts added that the government seemed to be “latching onto” the recess clause as a way to combat Senate intransigence on appointments.
Justice Samuel Alito Jr. accused Verrilli of making “a very aggressive argument for executive power.” Verrilli replied that he was arguing for the “status quo.”
Noel Canning’s Francisco argued that the government’s position would eviscerate the advice-and-consent clause as an important check on executive power. The government would create “a unilateral appointment power available for every vacancy at virtually any time, with advice and consent to be used only when convenient to the President.”
But Justice Ruth Bader Ginsburg told him that his argument “would destroy the recess clause. Under your argument, it is totally within the hands of the Senate to abolish any and all recess appointments.”
Francisco agreed, saying, “And that reflects the fact that the recess-appointment power is a contingent one. It arises only when the Senate chooses to trigger it by ending its session and beginning its recess. So the Senate always has the power to prevent recess appointments.” The president, he added, has a corresponding power to convene an emergency session if he thinks the Senate is being derelict in its duty to consider nominations.
The justices granted argument time to Senate Republican Leader Mitch McConnell, represented by Gibson Dunn’s Estrada, whose own nomination to the D.C. Circuit by President George W. Bush was blocked by a Democratic filibuster. Estrada argued that the case “fundamentally is about who gets to decide whether the Senate is in recess, the Senate or the President? Our submission today is that the Senate gets to decide whether the Senate is in recess.”
Estrada said the Journal of the Senate, the record of its official proceedings, states that the Senate was called to order and then adjourned on the disputed dates. That would be “conclusive, full stop,” that the Senate was not in recess, he said.
“There is no power in the Constitution to use the recess-appointments clause to overcome the opposition of the Senate to the president’s nominees,” Estrada said. “And for all that we hear about today—which has to do with how the heaven will fall, and the parade of horribles—there is no parade, and there is no horrible. The only thing that will happen is that the president, heaven help us, will be forced to comply with the advice and consent that the appointments clause actually calls for.”
@|Marcia Coyle is the chief national correspondent of The National Law Journal, an affiliate of the New York Law Journal. She can be contacted at firstname.lastname@example.org. Associated Press writer Sam Hananel contributed to this report.