The firestorm set off by Edward Snowden's leaks about National Security Agency surveillance programs has fueled much hand-wringing about executive branch power in the post-9/11 era. On Monday, though, the Supreme Court agreed to consider a case that could have a much larger impact on presidential authority.
The case -- National Labor Relations Board vs. Noel Canning -- should define just how far the Constitution allows the president to go in appointing government officials without the Senate's advice and consent. And if the justices accept a lower court's reasoning, recess appointments by the president may be a thing of the past. Not just for vacancies at the NLRB but for any post that requires Senate approval.
Noel Canning is a soda bottler in Washington state. After it became embroiled in a dispute with the Teamsters, the NLRB ruled that the company had improperly refused to honor a verbal agreement struck in contract negotiations. The company then sued, alleging that the board shouldn't have acted on the case because it didn't have a quorum. Three of its five members got onto the board via recess appointments that President Obama made while the Senate was not in session.
At issue was the meaning of this phrase from Article II of the Constitution: "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." Before Obama took office, it was common practice for presidents to make recess appointments whenever the Senate was on break. Late in President George W. Bush's second term, however, the Senate's Democratic majority kept the chamber in session continuously -- albeit occasionally in "pro forma" mode with no legislative business conducted -- to stop Bush from making appointments without their approval.
Obama continued his predecessors' practice, with one twist. When the NLRB was down to two members and couldn't function, the president appointed Democrats Craig Becker and Mark Pearce while the Senate was taking a break in March 2010. Becker had been blocked by a GOP filibuster, and the Senate refused to confirm him after he was appointed; Pearce, whose nomination was not controversial, was confirmed.
When the board's membership again fell to two in January 2012, Obama made three more recess appointments. Notably, he did so even though the Senate was still in pro forma session because the House GOP leadership refused to adjourn. The White House argued that the Senate was in recess because it wasn't conducting legislative business.
The U.S. Court of Appeals for the District of Columbia Circuit agreed with Noel Canning on two important points. A three-judge panel held that the constitutional power to make recess appointments applied only to the recess that occurs after Congress formally adjourns at the end of an annual session and before the next one begins. Limiting the president's power even further, it also held that the only vacancies that could be filled through such appointments were those that arose during such an inter-session recess.
Other appeals courts disagreed, as did the Obama administration (naturally). And as The Times' editorial board opined, the court's opinion effectively enables a minority in the Senate to kill off regulatory agencies they don't like -- and nullify the laws that created those agencies -- by filibustering any attempt to fill vacancies, and relying on their allies in the House to keep Congress in pro forma session with no inter-session breaks.
That's been the strategy behind the Senate GOP's opposition to Richard Cordray, the well-regarded recess appointee leading the Consumer Financial Protection Bureau. Republicans have praised Cordray as an evenhanded and responsible leader, yet have refused to allow the Senate to vote on his nomination unless Congress rewrites the law and robs the bureau of its independence. And unless the bureau has a director, by law it can't enact rules.
Every independent agency would be vulnerable to the same kind of partisan spat, including such vital regulatory bodies as the Securities and Exchange Commission, the Commodities Futures Trading Commission and the Federal Trade Commission. Their staffs could continue to enforce existing rules, but they'd be unable to adopt new ones -- or eliminate old ones that were no longer needed.
Yet the D.C. Circuit's reading of the Constitution makes sense; although there's no definition of "recess," the fact that the document says "the" recess and not "a" recess strongly implies that it's referring only to the formal break between sessions. On the other hand, the interpretation invites the sort of gamesmanship that keeps Congress in pro forma session for long periods, conducting no business.
The justices announced they would consider both elements of the D.C. Circuit's ruling: whether the recess appointment power applies only to formal recesses between sessions, and whether it applies only to vacancies that arise in those recesses.
According to Bloomberg, about 1,000 rulings and orders by the NLRB may be affected if the justices uphold the Noel Canning ruling. Every new rule from the Consumer Financial Protection Bureau would also be vulnerable to challenge.
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