The constitutional showdown over President Obama’s recess appointment authority moved into the U.S. Supreme Court on Thursday as the government asked the justices to review a federal appellate court decision invalidating three recess appointments to the National Labor Relations Board.
In the petition to the high court in NLRB v. Noel Canning, Solicitor General Donald Verrilli Jr. told the court that a ruling last January by a panel of the U.S. Court of Appeals for the District of Columbia Circuit threatens "a significant disruption" of the federal government’s operations and not only to the NLRB whose every order since January 4, 2012, may face challenge.
"Moreover, those effects can also be expected to extend to a wider range of federal agencies and offices, because venue lies in the District of Columbia in virtually all civil actions seeking review of federal agency actions," wrote Verrilli.
"If the decision below is allowed to stand, almost any federal officer who received a recess appointment during an intra-session recess, or who was appointed to fill a vacancy that did not first arise during the recess in which the appointment was made, could have his actions challenged in the D.C. Circuit on the ground that his appointment was unconstitutional and his official actions were ultra vires," he said.
In fact, wider fallout from the D.C. Circuit decision was seen on Capitol Hill on Monday when U.S. Rep. Jeb Hensarling (R-Tex), chairman of the House Financial Services Committee, released a letter to Richard Cordray, who received a recess appointment as director of the Consumer Financial Protection Bureau, in which he barred Cordray from delivering the bureau’s semi-annual report to his committee. In the letter, Hensarling told Cordray that he could not deliver the report because "you do not meet the statutory requirements of a validly serving director of the CFPB, and cannot be recognized as such."
Last January’s D.C. Circuit panel decision stemmed from a labor dispute between Noel Canning, a Pepsi bottler from Washington State, and Teamsters Local 760. The NLRB had found that Noel Canning violated the National Labor Relations Act by refusing to reduce to writing and execute a collective bargaining agreement reached with the union.
The government’s petition to the Supreme Court challenges the appellate court’s two reasons for striking down the recess appointments. First, the lower court held that the NLRB appointments were not made during "the Recess" as that term is used in the Constitution’s recess appointments clause.
"The Recess," according to the panel, is limited to inter-session recesses, the time between one session of the Senate and the next, and does not include intra-session recesses. President Obama’s recess appointments to the NLRB took place not during an inter-session recess, but while the Senate was holding so-called pro forma sessions and after the second session of the 112th Congress was convened on January 3, 2012.
The panel also held that the NLRB vacancies did not "happen" during "the Recess" of the Senate as required by the recess appointments clause. Ruling 2-1, the panel said that the clause’s use of the phrase "that may happen" only applies to vacancies that arise during "the Recess," not vacancies that happen to exist at the time the recess begins."
The government’s Supreme Court petition challenges the D.C. Circuit’s interpretation by relying on historical documents and understandings of the recess appointment authority as well as on decades of practice by other presidents.
"In the legislative context, the Founding generation understood that the term ‘recess’ included both inter- and intra-session recesses," the petition argues. "That term was used to describe both kinds of breaks in British Parliamentary practice. And when the Constitutional Convention of 1787 adjourned on July 26 until August 6, some delegates, including the President of the Convention, referred to that intra-session period as ‘the recess.’"
On the "may happen" issue, the government tells the justices, "For almost two centuries, the Executive has construed the phrase ‘that may happen’ as referring to vacancies that exist during a recess of the Senate, and the President has made numerous appointments on that basis. Before the decision below, that construction had been approved by three courts of appeals, two of them sitting en banc."
The U.S. Chamber of Commerce brought the D.C. Circuit case on behalf of Noel Canning. It had urged the government to appeal to the Supreme Court to resolve the uncertainty over NLRB actions.
Contact Marcia Coyle at firstname.lastname@example.org.