On June 24, just as its October 2012 term was ending, the U.S. Supreme Court granted certiorari in National Labor Relations Board v. Noel Canning, Docket No. 12-1281, agreeing to consider the scope of the president's recess appointment power. The stakes are high. The NLRB is appealing a January decision by the U.S. Court of Appeals for the D.C. Circuit that nullified three temporary appointments to the board by President Obama on January 4, 2012, which in turn may nullify more than 1,250 NLRB decisions dating back to August 2011. Beyond the NLRB, the court's decision in this case could impact actions taken by the Consumer Financial Protection Bureau, whose director also was appointed by Obama on January 4, 2012, and could have broad implications for staffing the highest levels of the executive branch in any administration.
As Don Corleone asked the heads of the Five Families he summoned to a meeting after they shot Sonny on the causeway, "How did things ever get so far? … It was so unfortunate, so unnecessary." Both the president and members of the Senate should ask themselves the same question. Their political bickering over nominees over the past 25 years has caused them to cede to the judiciary the ability to define the scope of their divided constitutional authority over the appointment and confirmation process.
Article II, Section 2, Clause 2, of the U.S. Constitution states that the president, "by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." By providing the Senate with a check on the president's appointment power, the framers tried to prevent a president from staffing the executive branch with unqualified political cronies. At the same time, the Constitution gave the president the practical option of making temporary appointments to high-level positions so the federal government would not be paralyzed if vacancies occurred during long breaks when the Senate was not in session. Clause 3 of that section provides that "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."
Unfortunately, the Senate has too often used its constitutional "advice and consent" authority to delay or block a president's nominees for purely partisan political purposes, rather than because of any particular concerns about the fitness of the nominees himself or herself. Frustrated by the Senate's delay in acting on their nominees, or simply needing to get key people in place within their administrations in a timely fashion, presidents of both parties have relied upon their constitutional authority to make temporary appointments during a Senate recess in order to fill a vacancy. Not to be outmaneuvered by the president — to hell with good government — Senate Majority Leader Harry Reid in 2007 initiated the practice of conducting pro forma sessions every three days during holidays and other legislative breaks in order to avoid a recess and thus thwart any recess appointments by President George W. Bush. By design, no legislative business was conducted during these pro forma sessions, which senators were not required to attend, except for the senator tasked with "gaveling" in and out. Giving political payback, House Republicans have blocked the Senate from taking a recess in excess of three days (in accordance with Article I, Section 5, Clause 4, of the Constitution), in order to block Obama from making recess appointments of controversial nominees, thus requiring the Senate to resume its practice of staying in session by the pro forma meetings.
The Bush administration was frustrated by the political gamesmanship that the pro forma sessions represented, but Bush nevertheless did not make any recess appointments during these breaks in Senate business. Obama, however, confronted the matter head-on with the four appointments he made in the midst of the pro forma sessions scheduled between December 20, 2011, and January 23, 2012. Significantly, the 112th Congress began its second session on January 3, 2012, one day before the controversial appointments.
The Justice Department justified Obama's recess appointments by reasoning that because no business was to be conducted at the pro forma sessions, the Senate was indeed on a recess — an intrasession recess comprising the first 20 days of the 112th Congress' second session. And, because no senators except the one presiding official were required to attend, the Senate was essentially "unavailable" to fulfill its duty or provide advice and consent on the president's nominees. One inconvenient truth for this argument is the fact that during one of the pro forma sessions during the December 17 to January 23 break, the Senate did indeed conduct business, passing on December 23 an extension of the payroll tax cut. Another point betraying the true intent behind these controversial appointments was the president announcing them in a political rally-like atmosphere and proclaiming, "I refuse to take 'no' for an answer." This evidence seemingly undercuts the administration's central argument that the Senate was unavailable to act on his nominees, i.e., in recess, when the president exercised his recess appointment authority.
In January, the D.C. Circuit, in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), invalidated the NLRB appointments from 2012, concluding that the president's recess appointment power was limited to "the recess" (as written in the Constitution) between sessions. The court declared the recess appointments to be "invalid from inception" because they were not done during the intersession recess. In its opinion, the court was clearly concerned with the separation-of-powers implications of giving the executive the discretion to declare the Senate to be in recess and to exercise the recess appointment power whenever it determined the Senate to be unavailable to act on its appointments for a period of time as short as three days.
Curtailing the president's appointment power even further, two of the three judges on the panel deciding Noel Canning also ruled that the president can exercise his recess appointment authority only to fill vacancies that arise while the Senate is in recess. While consistent with the court's textual analysis of the constitutional provision authorizing appointments, this aspect of the decision was somewhat surprising, as both the Senate and presidents for decades have interpreted the power broadly to encompass vacancies that existed during a recess, not merely those that arose during a recess. Moreover, there is a split among circuits on this issue, which the Supreme Court may resolve.
In a decision in May, the U.S. Court of Appeals for the Third Circuit adopted the D.C. Circuit's rationale concerning the scope of the president's recess appointment power and similarly declared the 2012 NLRB recess appointments to be invalid — as well as the appointment of another board member during an intrasession recess in 2010 — and the subsequent decisions of the board to have been invalid as well. That ruling came in New Vista Nursing v. NLRB, No. 11-3440 (3d Cir. May 16, 2013).
The three NLRB appointments made by Obama in January 2012 are the focus of the Supreme Court's interest in Noel Canning. The Supreme Court will consider the following issues with respect to the president's authority to make recess appointments: (1) whether the president's recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or if it is instead limited to recesses that occur between enumerated sessions of the Senate; (2) whether the president's recess-appointment power may be exercised to fill vacancies that exist during a recess, or if it is instead limited to vacancies that first arose during that recess; and (3) whether the president's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
The court can go any number of directions in deciding these questions. A strict constructionist view would tend toward affirming the D.C. Circuit's restrictions on the recess appointment power, but separation-of-powers concerns can lead to different outcomes depending on where a justice's sympathies or concerns about overreaching may lie. Clearly, the D.C. Circuit expressed its concerns about the executive having the discretion to essentially circumvent the Senate's constitutional role in high-level appointments and sought to preserve the divided authority established by the framers. But a case equally faithful to the framers' intent can be made to prevent the Senate from transparently engaging in empty pro forma sessions merely to frustrate the president's constitutional authority to fill key leadership positions in the government. On the other hand, at the dawn of the republic, the Senate was in recess for much longer periods of time, travel back to Washington was far more difficult and the president's need for the ability to bypass the constitutionally mandated confirmation process was more acute than it is today. This case is difficult to handicap but warrants close watching because of its wide-ranging implications, not only for executive branch appointments but for judicial nominations as well.
The political-legal context for the questions before the Supreme Court is disheartening. If the Senate (no matter which party is leading it) had been addressing nominations more responsibly and expeditiously, the court would not have to decide whether the Senate properly can frustrate the president's constitutional power to make recess appointments by conducting pro forma sessions designed to do exactly that, or whether the president, simply because he does not like the outcome with respect to his nominees, may override the constitutional authority of the Senate to advise and consent to high-level appointments, as well as the constitutional prerogatives of a co-equal branch of government to establish its own rules and calendar. Put this way, it is hard to know which outcome to root for.
Scott A. Coffina is a former associate counsel to President George W. Bush and former assistant United States attorney. He currently is a partner at Drinker Biddle & Reath in Philadelphia and Washington, D.C. Follow him on Twitter @scottcoffina.