The Supreme Court heard an atypically long oral argument this morning in National Labor Relations Board v. Noel Canning et al. The 90-minute argument (as opposed to the standard 60 minutes) focused on the Constitution’s Recess Appointments Clause which states that “[t]he 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.”
Presidents have been making recess appointments since the founding; in fact President George Washington employed a recess appointment to name John Rutledge the Second Chief Justice of the United States, though his nomination was eventually defeated by the Senate. There has long been a political understanding which has governed recess appointments. In a recent ACS conference call, David Strauss, Gerald Ratner Distinguished Service Professor of Law and ACS National Board of Directors member, noted that, for example, since the administration of President James Monroe, it has been understood that a vacancy need not arise during a congressional recess in order for it to be filled via a recess appointment. However, this political consensus may soon collapse as the Court fully examines the clause for the first time.
The case before the Court deals with the validity of a 2012 National Labor Relations Board (NLRB) decision rendered by a panel made up of three members of the five-member Board. President Obama had appointed two of the three members to the Board via a recess appointment. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit agreed with Noel Canning (a division of the Noel Corporation) that the recess appointments to the NLRB were unconstitutional. During the recent ACS call, American Enterprise Institute Resident Scholar Norman J. Ornstein called the D.C. Circuit’s decision a “breathtaking exercise of judicial activism.” On appeal, three questions are before the Court: whether a president’s recess appointment power is limited to inter-session recesses, or if it extends to intra-session recesses; whether a recess appointment can fill any vacancy, or if it is limited to those vacancies, which arose during the recess; and whether recess appointments can take place when the Senate is meeting every three days in pro-forma sessions, a practice that has become increasingly frequent in recent years as partisan rancor has escalated.