“Your argument is, it seems to me, in search of a limiting principle,” Justice Anthony Kennedy told President Barack Obama’s lawyer on Jan. 13 at the Supreme Court.
That lawyer, Solicitor General Donald Verrilli, was explaining when Obama can appoint top government officials and federal judges without Senate confirmation. In other words, Kennedy saw that Obama was claiming unlimited power on this issue.
With that, it became clear that Obama could lose NLRB v. Noel Canning at the Supreme Court. In fact, Obama could lose by a vote of 8-1. Only Justice Ruth Bader Ginsburg had anything supportive to say of Obama’s unprecedented claim of power to bypass the Senate.
On Jan. 4, 2011, Obama made three recess appointments to the five-member National Labor Relations Board (NLRB), which otherwise lacked a quorum to do business, and one to the Consumer Financial Protection Bureau (CFPB). NLRB then issued a ruling against Noel Canning, a company going through a labor dispute. Noel Canning sued, arguing that the NLRB appointments were unconstitutional, and therefore that NLRB didn’t have enough members to issue regulations or orders.
Neither house of Congress can adjourn for more than three days without the consent of the other house. On Jan. 4, 2012, Obama made four recess appointments to nominees that the U.S. Senate had been refusing to confirm. However, during this time of the year, a single senator would go to the Senate floor for several minutes once every three days to conduct a pro forma session, since the House did not consent to the Senate’s adjourning, and the Senate majority wanted to be available to do business and prevent Obama from making what are called recess appointments.
Democrats had blocked former President Bush’s appointments in the same way.
The Constitution requires the most powerful positions in government and all federal judgeships to be confirmed by the U.S. Senate. However, there is an exception if the Senate is in recess and therefore cannot act on nominations.
The Recess Appointments Clause in Article II of the Constitution says, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate,” and that those appointments will expire at the end of the following year.
Although the Senate may adjourn for weeks at a time during the year, the original meaning of “recess” was when the year’s business is complete, at whatever date, until the next annual congressional session starts on January 3. At all other times, the Constitution requires that a president can only make high-level appointments with the “advice and consent” of the Senate.
Verrilli started by saying that adopting the challengers’ arguments on the original meaning of the Recess Appointments Clause “would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington, and going forward, would diminish presidential authority…”
Justice Antonin Scalia asked the question that would determine the outcome of this case: “What do you do when there is a practice that flatly contradicts the clear text of the Constitution. Which of the two prevails?” Many presidents have made recess appointments during mid-year adjournments, especially since the 1970s.
Tellingly, Verrilli kept evading Scalia’s question, refusing to give a direct answer. When Verrilli indicated which practice would prevail, Scalia asked incredulously, “So if you ignore the Constitution often enough, its meaning changes?”
Verrilli’s argument is that a president can declare the Senate in recess whenever the Senate has a “suspension of business,” quoting a dictionary. Kennedy seemed shocked. “So you think there’s no recess during pro forma sessions?” That’s when Kennedy told Verrilli that Obama’s claim of power had no limiting principle, since whenever the Senate shuts down for just a few hours – such as when they go home at night – the president could then appoint anyone he wanted to any opening and completely evade the Senate.
Verrilli argued that the clause is vague as to when a “recess” is and when a vacancy “happens.” Scalia retorted, “It’s been assumed to be ambiguous by self-interested politicians.” He then gave as an example: “Death is an enduring state. But if someone dies in 1941, you don’t say he died in 1945. He’s still dead.”
At least three of the four liberal justices also balked at Verrilli’s argument.
Justice Elena Kagan – appointed by Obama in 2010 – took issue with Verrilli’s insisting that it’s not a recess if certain words were missing from the resolution preceding the break. “You’re asking us to peg this on a formality that the Senate could easily evade, and that suggests that it really is the Senate’s job to determine whether they’re in recess or whether they’re not.”
When Verilli objected, insisting that “the President has got to make the determination of when there’s a recess,” Obama’s other appointee, Justice Sonia Sotomayor – who joined the Court in 2009 – shot back, “But why? You’re making an assumption, which is that the Senate has to take a recess. But the Senate could choose, if it wanted to, and I think there might be some citizens that would encourage it to never recess.”
Justice Stephen Breyer – appointed by Bill Clinton in 1994 – joined the fray. He noted that the Constitution’s Twentieth Amendment requires Congress to meet on January 3 of each year to begin each new session, but that often on that day there is only a pro forma session that few members attend and that conducts no business. “Are you saying they violated the Twentieth Amendment?” he asked.
Breyer said this case looks like a political fight between the political branches of an elected president and elected Senate, and he saw no constitutional requirement for the courts to settle it.
As often happens, Justice Samuel Alito cut to the core of what is really going on in this case. He said to Verrilli:
But you are making a very, very aggressive argument in favor of executive power now, and it has nothing whatsoever to do with whether the Senate is in session or not. You’re just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the president must be able to fill those positions… I don’t see what that has to do with whether the Senate is in session.
As Verrilli attempted to say that Obama must be able to fill vital positions when the Senate might adjourn during the year, Scalia brushed that aside, reminding him the Constitution expressly authorizes the president to call Congress back into session whenever he thinks it is necessary and summon them to Washington.
Noel Canning was very well-represented by Noel Francisco from Jones Day. He began:
The Advice and Consent Clause imposes an important check on executive power. Each of our three arguments preserves that check, and provides for a separate and independent basis for affirming the court below. The government’s position, in contrast, would eviscerate that check, creating a unilateral power available for every vacancy at virtually any time with advice and consent to be used only when convenient to the president.
After energetic questioning, Francisco concluded, “Here the structural protections of the Constitution exist to protect the liberty of the people. They were clearly transgressed with these unprecedented appointments.”
Republican senators were separately represented by Miguel Estrada from Gibson Dunn. As Estrada explained with his characteristic style:
This is the cockeyed way of going about the instruments of the Constitution. There is no power in the Constitution to use the Recess Appointments Clause to overcome the opposition of the Senate to the president’s nominees. And for all that we hear about today, which has to do with how the heavens will fall, and the parade of horribles, there is no parade, and there is no horrible. The only thing that will happen is that the president, heaven help us, will be forced to comply with the advice and consent that… the Appointments Clause actually calls for. That was not viewed as an evil by the Framers [of the Constitution].”
Ken Klukowski is senior legal analyst for Breitbart News and on faculty at Liberty University School of Law. Follow him on Twitter @kenklukowski.