The U.S. Supreme Court has agreed to decide when a president can use the recess appointment power to fill vacancies in the cabinet and other government positions.
The justices will settle a long-standing dispute between Congress and the White House about whether a president can use the power during brief breaks in Senate sessions, as presidents of both parties have done in the past. In 2012, President Obama infuriated Senate Republicans by naming Richard Cordray to be director of the newly formed Consumer Financial Protection Bureau and putting three new members on the NLRB, the National Labor Relations Board.
The case the court will hear was brought by a Pacific Northwest soft drink bottler who lost a union dispute before the NLRB. The company, Noel Canning, claims that the president had no power to appoint the new NLRB members and that subsequent actions by the board therefore lacked legitimacy.
During the George H.W. Bush administration, Democrats came up with the idea of pro forma sessions, in which the body was gaveled to order then immediately adjourned for another few days. They claimed that because the Senate remained in session, recess appointments could not be made. Senate Republicans have also since continued the pro forma practice when they have held the majority.
"Such short intra-session breaks are not recesses," the bottling company argued. "Otherwise, every weekend, night, or lunch break would be a 'recess' too."
The court Monday agreed to hear the Obama administration’s appeal of a lower court ruling that found that the president’s 2012 recess appointments of three members to the NLRB were illegal.
The justices will hear arguments in the case this fall.
The federal appeals court in Washington held last January that Obama’s NLRB recess appointments were invalid since the Senate was really not in recess on the day that he made them.
The three-judge appeals court panel ruled that Obama’s interpretation of the words “the recess” in Article II of the Constitution would permit “the president to decide when the Senate is in recess” and would give him “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”
In asking the high court to overturn the appeals court ruling, Solicitor General Donald Verrilli said the decision “potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.”
Verrilli argued that the president’s recess-appointment authority is not confined to the recesses that occur between sessions of Congress.
He also said the appeals court’s ruling squarely conflicts with a 2004 decision by the U.S. Court of Appeals for the Eleventh Circuit in the case of President George W. Bush’s recess appointment of William Pryor to the federal bench. (The Senate later confirmed Pryor, as part of a bipartisan deal that settled a quarrel over Democratic filibusters of Bush judicial nominees.)
In 2004, Republicans argued that Bush’s appointment of Pryor was valid – while Democrats contended that the president was acting unlawfully. The roles are now reversed. Senate Republican Leader Mitch McConnell and Republican senators argue in their friend of the court brief in the NLRB case that if a president “can override Senate procedures and second-guess its account of its actions, there is no telling what mischief he can achieve.”
Obama has nominated two of the NLRB members to whom he gave recess appointments in 2012, but Republicans are blocking Senate votes on them.
“My problem is not with their qualifications, my problem is if they continue to decide cases after the federal appellate court unanimously decided they were unconstitutionally appointed,” said Sen. Lamar Alexander, R- Tenn., said at a Senate Health, Education, Labor and Pensions Committee hearing in May.
Committee chairman Sen. Tom Harkin, D - Iowa, said the Senate should vote on the NLRB nominees, calling the NLRB “absolutely critical to our economy, and our country, and our middle class.” He decried the Republicans for what he called “the relentless political attacks endured by the dedicated public servants who work on the board. To put it plainly, there are clearly many elected officials who are actually trying to shut the NLRB down.”