Justices lean toward Congress in White House fight over recess appointments
January 13th, 2014
09:00 AM ET
11 months ago

Justices lean toward Congress in White House fight over recess appointments

Updated 6:04 p.m. ET, 1/13/2014

(CNN) - Supreme Court appeared on Monday to lean toward Congress in the fight over presidential recess appointments – those placed in top government jobs temporarily without Senate approval.

It’s a high-stakes constitutional and political confrontation over a practice that has accelerated in recent years due to partisan gridlock in Congress.

Moreover, a ruling by the court against the Obama administration could invalidate hundreds of decisions by the National Labor Relations Board – the federal agency at the center of this legal storm.

At issue is whether three people named by President Barack Obama to NRLB were ineligible to serve because their appointments were made while Senators were out of town on a holiday recess two years ago, but the chamber remained technically in a “pro forma” session.

The Constitution allows a President to make appointments during a recess. But more recently, lawmakers have sought to thwart certain appointments by never technically shutting down the Senate.

The labor board fight is also “ground-zero” in the pitched partisan battle over issues related to organized labor, a major constituent of Democrats.

A federal appeals court one year ago determined the labor board "could not lawfully act” because it did not have a quorum.

Enter Obama and his three appointments – two Democrats and one Republican.

The justices appeared to agree the Senate has the last word deciding when it is and is not in session, but struggled for a solution that would blunt the practical impact nullifying the Board's decisions might have.

"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," Justice Samuel Alito told U.S. Solicitor General Donald Verrilli, representing the administration in oral arguments.

"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," Aliton said.

Justice Ruth Bader Ginsburg said things have changed from two centuries ago when Congress often went seven months or more without meeting because of the difficulty of travel.

"I think to be candid, the Senate is always available. They can be called back on very short notice," to confirm any emergency appointments, she said. "So what is it that's the constitutional flaw here? It isn't that the Senate isn't available. The Senate is available. It can easily be convened."

Republicans claimed the appointments to the labor board created a panel that was overly pro-union, and an eventual high court ruling could invalidate hundreds of findings issued over a period of months.

A lawyer for Senate Minority Leader Mitch McConnell of Kentucky and 44 other Republicans were among those making the case directly before the justices.

McConnell and Senators Jeff Sessions and Mike Lee, along with Obama's chief spokesman, Jay Carney, were in attendance at the high court.

The Democrat-controlled Senate changed its rules late last year to make it easier to overcome filibusters and approve presidential appointments.

Obama may now have an easier time of it on his nominees at least, so long as the Democrats maintain control of the Senate in next November’s midterms.

What the high court decides could also put in jeopardy some decisions made by Richard Cordray, appointed at the same time to head the Consumer
Financial Protection Bureau, a move also being challenged in a separate lawsuit.

He served 18 months under a recess appointment before being confirmed to the post by the Senate last July.

In a fascinating 95 minutes of public discussion, the justices debated the competing views of raw power, what it means to have a "recess," and ultimately who gets to decide how the vacancy is filled.

Verrilli began by criticizing the view of Senate Republicans and others, saying they would "repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington, and going forward, it would diminish presidential authority."

But members of the bench of both ideological stripes raised serious concerns.

"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," said Justice Elena Kagan, one of Obama's two appointees to the high court.

Verrilli replied: "The President has got to make the determination of when there's a recess."

"But why? You're making an assumption, which is that the Senate has to take a recess," followed Justice Sonia Sotomayor. "But the Senate could choose, if it wanted to, and I think there might be some citizens that would encourage it to, to never recess."

Sotoamyor, Obama’s first nominee to the high court added those lawmakers could "work every day, which lots of other people do," which brought laughter to the courtroom.

The Senate last year worked only 99 days on legislative business, the lowest non-election year total since 1991.

Some on the court suggested the President's moves were more about politics than moving ahead when a key vacancy suddenly occurs, or in the national interest during a crisis.

Chief Justice John Roberts told Verrilli the framers of the Constitution provided the "President will nominate and the Senate, if it so chooses, can confirm a nominee. You spoke of the intransigence of the Senate. Well, they have an absolute right not to confirm nominees.

"You're latching on to the Recess Appointment Clause as a way to combat that intransigence rather than to deal with the happenstance that the Senate is not in session when a vacancy becomes open."

The high court has never before addressed the recess appointment issue, and Justice Stephen Breyer, in researching the history, said, "I can't find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the President. To the contrary, [Alexander] Hamilton says that the way we're going to appoint people in this country is Congress and the President have to agree.

"Now, that's a political problem, not a constitutional problem, that agreement. And it was just as much true of President George [W.] Bush ... as it is with President Obama."

Much of the argument centered on whether the President or the Senate could abuse its competing powers. Both sides offered worse-case scenarios, which some on the court tried to temper.

"Your argument would destroy the recess clause," Ginsburg told Noel Francisco, lawyer for a private company challenging the NLRB appointments. "Under your argument, it is totally within the hands of the Senate to abolish any and all recess appointments."

Presidents Ronald Reagan made 240 recess appointments, George H. W. Bush made 77, Bill Clinton made 139, George W. Bush made 171, and Obama had made 32 so far.

Gen. (later President) Dwight Eisenhower, Judge (later Justice) Thurgood Marshall, Chief Justice Earl Warren, and Federal Reserve chairman Alan Greenspan were all recess appointments.

Some GOP lawmakers also accused the President of flip-flopping on the issue. When he was a senator, Obama criticized then-President Bush's recess appointment of John Bolton as U.S. ambassador to the United Nations.

Cordray was named the same day as the three NLRB appointments, which gave the board a full panel for the first time in a year.

The lawsuit was brought by Noel Canning, a family-owned Yakima, Washington, bottling company, which complained the NLRB improperly ruled in favor of Teamsters Local 760 during contract negotiations. Company executives said the board lacked a binding quorum because the recess appointments made by Obama were not legal.

Since May 2011, Republicans have been relying on a little-known procedure to keep the Senate in session, even when it was not really conducting any business - in order to stop the president from making those recess appointments.

The legal basis comes from a 1993 Department of Justice brief saying the president should act only if the Senate is in official recess more than three days.

So, party leaders had arranged for a single Republican lawmaker to show up every three days and gavel the Senate to order, wait around for a while, gavel it to a close, then leave.

Legal experts have disagreed on both the tactical and timing procedures by the Senate, and whether the president has unilateral authority to override those legislative tactics.

The case to be decided by the high court is NLRB v. Noel Canning (12-1281). A ruling is expected by early summer.


Filed under: Mitch McConnell • President Obama • Supreme Court
soundoff (21 Responses)
  1. Gurgyl

    NLRB is a quasi administrative entity, so president is empowered to nominate without seeking either congress or senate vote. Administrative powers are very exhaustive and president has those powers vested in him for the good of the people. He is an executive body, elected by the people. SC will strike down such petty matters, it would not even take it to bench. Period.

    January 13, 2014 09:15 am at 9:15 am |
  2. Gurgyl

    NLRB IS A QUASI ADMINISTRATIVE BODY, YES, PRESIDENT HAS POWER TO APPOINT FOR THE GOOD OF THE PEOPLE. Administrative powers are vested with president. Sac strikes down petty matters.

    January 13, 2014 09:18 am at 9:18 am |
  3. rs

    If the SCOTUS buys that a 31 second "day" by one GOP Senator is really a session work day for all Republican Senators, then yes, the President's appointments (owing to the Senators mindless obstruction of government by "holding" appointments ) is valid. Their opinion will be interesting. Meanwhile we have further proof of how delusional the GOP is.... and they worry the government get scammed by some old woman on welfare who might get $20 she shouldn't.

    January 13, 2014 09:25 am at 9:25 am |
  4. Dutch/Bad Newz, VA -aka- Take Back The House -aka- No Redemption Votes

    With this obstructionist republican party in the Senate blatantly blocking all of the President's nominees, I don't see why the recess appointments are bad.

    January 13, 2014 09:25 am at 9:25 am |
  5. Name jk. Sfl. GOP CRUZ lee&rubio 24billion dallar LOSS of your tax money conservatives,the garbage of America.

    Why should Obama have to wait while the GOP teaparty clowns try to destroy our goverment after the GOP LOST the 2012 election. Their record filibuster of ALL appointees is harming our goverment and will result in their loss of the house in November.

    January 13, 2014 09:28 am at 9:28 am |
  6. current state of the union

    Pro union, any one who works as SN hourly employee should be pro union.I hear the " corrupt union bosses" and wonder what year he thinks this is. Unions are the only organized entity that stands up for the American worker, and that's why the Republicans hate them so much, they think the rich should set the rules. The more power the rich and big business has, the worse your life gets, period!

    January 13, 2014 09:32 am at 9:32 am |
  7. ghostwriter

    "The President made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even trying to obtain its advice and consent," said McConnell. "The President was dismissive of the Constitution's constraints on his power."

    A filibuster-proof bloc of Republicans had blocked Cordray's nomination at the end of 2011. They warned that they would oppose any nominee to head the bureau until its structure was changed so it was run by a bipartisan commission instead of a lone director.

    So.....conservatives who don't agree with the board refused to allow votes for confirmation because they disagreed with the way the law that created the board.

    January 13, 2014 09:41 am at 9:41 am |
  8. Rick McDaniel

    The WH has taken control of the Court.........just as they have taken control of the Senate.

    The country LOSES!

    January 13, 2014 09:44 am at 9:44 am |
  9. Econ301

    I miss the old days when you had to have skin in the game to have congress be in session or to filibuster.

    January 13, 2014 09:48 am at 9:48 am |
  10. Rudy NYC

    Republicans have been announcing opposition appointees before there are even named appointees. Reminds of what John Boehner said a couple of weeks ago about the right wing groups opposing the budget deal before they had even seen it. He had called them out for opposing the idea of compromise and reaching a deal.

    January 13, 2014 09:49 am at 9:49 am |
  11. malcore

    politicians break the law 24-7, and now they want to act, where was all this concern while we had the last two presidents running this nation into the ground.

    January 13, 2014 09:55 am at 9:55 am |
  12. Kyle

    Oh, now we care about the Constitution? Because you seem to be ignoring both the Constitution and the Bill of Rights when it comes to the NSA issue.

    January 13, 2014 10:05 am at 10:05 am |
  13. Sergeant

    What, government working? I see how that is a problem for repubs who would rather shut it down.

    January 13, 2014 10:05 am at 10:05 am |
  14. Ovawendon

    If our House of NO would just act, things like this would not be necessary.

    January 13, 2014 10:07 am at 10:07 am |
  15. Rudy NYC

    How many years have we been waiting and trying to get someone named to head up ATF so that we can "enforce the laws that are already on the books?"

    January 13, 2014 10:15 am at 10:15 am |
  16. neoritter

    Kind of interesting, on the one hand recess appointments have been done for a long time. But just because it's been around for a while doesn't mean it's right. Slavery and segregation were around for a while, didn't make them right. On the other hand though, stopping them and strengthening the Senates role in approving Presidential appointments helps cut down on nepotism and partisanship in those appointments. It also gives a stronger air of legitimacy to the appointments as they are approved by those that represent the people.

    January 13, 2014 10:18 am at 10:18 am |
  17. wendel

    republicans will block anything so why wait. President has the right to appoint and should. good pro union when repos in charge it is anti union so what.

    January 13, 2014 10:20 am at 10:20 am |
  18. iceload9

    Nice time wasting nonsense that distracts from unemployment.

    January 13, 2014 10:21 am at 10:21 am |
  19. Citizen

    If the Supreme Court votes against these appointments, will it invalidate all those made in the past? Will those personnel be forced to return any Federal benefits, and will their decisions all be invalidated?

    January 13, 2014 10:27 am at 10:27 am |
  20. berniecat@outlook.com

    well this mean we can re-call all the bush appointees ,, I believe about 40 were made during the exact situations as Obama did ?

    January 13, 2014 10:28 am at 10:28 am |
  21. Fair is Fair

    Rudy NYC

    How many years have we been waiting and trying to get someone named to head up ATF so that we can "enforce the laws that are already on the books?"
    -------
    Are you implying that having that position vacant means that ATF is defunct? Seriously?

    January 13, 2014 10:30 am at 10:30 am |