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US Supreme Court takes dim view of NLRB appointments

The U.S. Supreme Court has cast serious doubt on President Barack Obama’s constitutional authority to install three members on the National Labor Relations Board without Senate approval in 2012.

During an extended oral argument in NLRB v. Noel Canning, several justices suggested that the Obama administration’s contention that it had the power to make recess appointments to the agency during a brief break taken by lawmakers is at odds with the language of the Appointments Clause. That constitutional provision, Article II, §2, clause 3, reads: “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.”

The court spent most of the more than 90 minutes of argument on Jan. 13 parsing the definition of the words in that short sentence to determine if the framers of the Constitution intended to allow the president to unilaterally install nominees through recess appointments during short breaks within a congressional session, as many presidents have done, or if such appointments can only be made during formal recess periods in between sessions.

The justices hinted strongly that the constitutional text called for the latter interpretation, which would lead to a legal quagmire.

“What do you do when there is a practice that flatly contradicts the clear text of the Constitution?” asked Justice Antonin Scalia.

The Obama administration argued that the latter interpretation would turn on its ear a practice that goes back to the first president.

In the present case, the NLRB was on the brink of falling below the statutory minimum quorum of three members needed for the board to act. Meanwhile, Senate Republicans was holding up votes on pending NLRB nominees, citing decisions issued by the board that GOP lawmakers saw as overtly pro-union.

To prevent the president from making recess appointments, lawmakers also gaveled in periodic pro forma sessions during scheduled recesses to keep Congress technically in session even when no businesses was being conducted.

Despite these efforts, during a brief break on July 4, 2012, President Obama used the recess appointment power to install three members to the NLRB as well as a director to the Consumer Financial Protection Bureau.

Several businesses who received adverse rulings from the board when it consisted primarily of recess-appointed members — including canning and bottling company Noel Canning -— challenged the authority of the recess appointments.

In 2012, the U.S. Court of Appeals for the D.C. Circuit ruled that those appointments were unconstitutional, calling the period of time during which the president’s appointments were made “an imaginary recess,” not the intersession recess the framers had in mind when they drafted the Appointments Clause.

The agency continued to operate despite the decision. While the Senate later confirmed enough nominees to bring the NLRB to its full five-member capacity, the validity of hundreds of rulings that were made with recess appointed members hangs in the balance, as do questions about the limits of executive and congressional powers.

Text vs. practice

At oral argument, Solicitor General Donald Verrilli Jr. argued that Noel Canning’s narrow interpretation of the Appointments Clause “would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington” and “diminish presidential authority in a way that is flatly at odds with the constitutional structure of the framers.”

Scalia questioned whether that made a difference in a case of constitutional construction.

“Let’s assume that the text is clearly against you,” he said. “Should I say, ‘Yes, it says something else, but the practice for over 200 years has been something different and it’s the practice that must prevail?’”

“The practice gives meaning to the Constitution,” Verrilli replied.

Justice Ruth Bader Ginsburg questioned whether the original intent of the provision — to allow the president to place people in important executive positions at times when Congress was unable to convene for confirmation votes — applies in the modern era.

“Historically, Congress met and they met continuously, and then they went on horseback back home [for] six months or nine months,” Ginsburg said. “Today there is nothing like that.”

Verrilli said that the framers contemplated that shorter recess periods might occur, but Justice Anthony M. Kennedy expressed concern that the government’s interpretation was too broad.

“Your argument, it seems to me, is in search of a limiting principle,” Kennedy said, questioning how short a qualifying recess could be. “A lunch break? A one-day break? … A three-day break, a one-week break, a one-month break? How do you resolve that problem for us?”

‘Destroying’ the clause?

Noel Francisco, a partner in the Washington office of Jones Day, argued on behalf of Noel Canning that the government’s position runs roughshod over the Advice and Consent Clause.

“The government’s position [would] eviscerate that check, creating 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,” Francisco said.

Ginsburg suggested that 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.”

“That reflects the fact that the recess appointment power is a contingent one,” Francisco replied. “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.”

Miguel Estrada, a partner in the Washington office of Gibson, Dunn & Crutcher, represented Senate Republican Leader Mitch McConnell and other lawmakers who joined the case as amicus curiae in support of Noel Canning.

Estrada argued that the record defies the president’s contention that the Senate was in recess, under any definition, when the appointment were made.

“[The] official record of the Senate … says the Senate was called to order and then adjourned,” said Estrada, referring to the pro forma sessions. “It doesn’t say: Two guys who happened to be Senators met at a bar and had a beer.”


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