Supreme Court looks at a president’s power to appoint

01/13/2014 3:07 PM

01/21/2014 4:23 PM

Many federal decisions hung in the balance Monday as Supreme Court justices wrestled with a case that involved the appointments made by presidents during a congressional recess.

In a high-stakes constitutional fight, justices from both right and left sounded skeptical about the Obama administration’s reasoning in making so-called “recess appointments” to the National Labor Relations Board. If the appointments are deemed invalid, myriad board decisions resolving labor disputes would be cast into doubt, while presidential clout overall would be curtailed.

“You are making a very, very aggressive argument on behalf of executive power,” Justice Samuel Alito warned Solicitor General Donald Verrilli Jr. “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.”

In particular, multiple justices stressed that it’s Congress and not the White House that gets to decide when Congress is in recess. This is crucial, because the disputed National Labor Relations Board appointments at the heart of the case heard Monday were made during a brief Senate session that President Barack Obama essentially called a ruse.

If the court agrees with the Senate that it actually was not in recess, then Obama didn’t have the power to unilaterally make appointments.

“It really is the Senate’s job to determine when it’s in recess and when it’s not,” said Justice Elena Kagan, who was appointed by Obama.

The 90-minute oral argument Monday morning was the court’s first in 2014, and it combined the archaic with the contemporary. It featured justices citing 18th century dictionaries and an early congressional manual penned by Thomas Jefferson, while playing out before an audience that included White House Press Secretary Jay Carney and Senate Minority Leader Mitch McConnell of Kentucky.

Technically, the case called National Labor Relations Board v. Noel Canning will force the court to decipher the meaning of a word like “happen.” Practically, justices must also sort through the real-world implications of a decision to overturn presidential appointments.

“There are many dozens of board decisions, and perhaps many hundreds of board decisions, that are under a cloud,” Verrilli told the court, further cautioning against a court decision that might “repudiate the constitutional legitimacy of thousands of appointments of presidents going back to George Washington.”

A soft-drink bottling company based in Yakima, Wash., Noel Canning clashed with the NLRB in February 2012, when the board upheld an administrative judge’s ruling against the company in a contract dispute with Teamsters Local 760.

Two of the three labor board members ruling against Noel Canning, Democrat Sharon Block and Republican Terence Flynn, rose to their positions in January 2012 as a result of recess appointments by Obama to thwart opposition from Senate Republicans.

Taking a page from the Democratic playbook used during the George W. Bush presidency, Republicans have kept the Senate in “pro forma” sessions that last only a minute or so but are designed to prevent recess appointments.

The Constitution authorizes presidents to make such appointments “during the Recess of the Senate, which shall expire at the end of their next session.” The Constitution further states that the appointments can be made to “fill up all vacancies that may happen during the Recess.”

Presidents like the recess appointment power. President Bill Clinton used it 139 times and President George W. Bush made 171 such appointments, according to the Congressional Research Service. Through June 2013, Obama had made 32 recess appointments. Until Monday, though, the Supreme Court had not spent a lot of time on the issue.

The court must now determine what counts as a recess, and whether the term only applies to the period between two congressional sessions. It must also determine whether the recess appointments can only be used for vacancies that first occurred during the recess.

The U.S. Court of Appeals for the District of Columbia Circuit ruled that for appointment purposes, a “recess” is only between the first and second session of a Congress. For instance, the first session of the current Congress expired Dec. 26, 2013, and the second session commenced Jan. 3, 2014.

The appellate court also said that the recess appointments can only be made for positions that became vacant during the recess.

Many other companies have raised similar arguments and are awaiting a Supreme Court decision in the Noel Canning case. Florida’s Nova Southeastern University is challenging a labor board decision that sided with the school’s janitorial staff. KAG West, a fuels delivery company with offices in West Sacramento, Calif., is challenging a 2012 labor board decision involving the treatment of workers in Southern California.

Dozens of other lawsuits are also awaiting high court decisions.

“It would undoubtedly have some (impact),” Noel Canning attorney Noel J. Francesco acknowledged, “but this court has never shied away from enforcing the strictures of the Constitution simply because it could have some impact on prior cases.”

Tellingly, several justices suggested further that the Senate games used to thwart presidential nominees are a political matter beyond the reach of federal courts, with Chief Justice John Roberts Jr. noting that senators “have an absolute right not to confirm nominees a president may submit.”

“The way we’re going to appoint people in this country is Congress and the president are going to have to agree,” Justice Stephen Breyer said, citing the work of Alexander Hamilton. “That’s a political problem, not a constitutional problem.”

Justice Clarence Thomas, as is his custom, was the only one of the nine justices not to speak or ask questions during the oral argument. A decision in the case is expected by the end of June.

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