Obama’s Recess Appointments Challenged By Supreme Court

Justices pound administration for abuse of executive power

Supreme Court / AP
January 13, 2014

The Supreme Court grilled the Obama administration over the president's abuse of executive power on Monday.

During oral arguments in Noel Canning v. NLRB, justices challenged the administration to defend President Barack Obama’s use of recess appointments to fill three vacancies at the National Labor Relations Board in January 2012. Obama dodged Senate confirmation for the board members, appointing them while the Senate was in pro forma session and declaring it a "recess appointment."

"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—fill those positions," Justice Samuel Alito said to Obama Solicitor General Donald Verrilli.

Verrilli argued those pro forma sessions—during which a handful of senators enter into then exit session every few days—were not legitimate because no major action was taken.

"The definition of recess is when no business shall be conducted. And that's exactly what the Senate said," he said.

That argument has not been effective in lower courts. The D.C. Circuit Court of Appeals declared in January 2013 that the appointments were unconstitutional because the Senate, rather than the president, determines when it is in session. Several other circuit courts reached similar conclusions about Obama's recess appointments.

Attorneys representing Noel Canning warned the Supreme Court that reversing those decisions could lead to further violations against the Constitution's separation of powers.

"The Advice and Consent Clause imposes an important check on executive power," plaintiff attorney Noel J. Francisco argued. "The government's position, in contrast, would eviscerate that check, creating a unilateral appointment power available for every vacancy at virtually any time with advice and consent to be used only when convenient to the president."

Even the court's liberal bloc appeared skeptical of the Obama administration’s argument that the nation could suffer from extended vacancies if the language of the Constitution limits the president’s recess appointment power.

"This is not the horse and buggy era anymore. There's no real—there's no such thing truly as congressional absence anymore. And that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have," Obama appointee Elana Kagan said.

"I think the recess power may now act as a safety valve given that intransigence," Verrilli responded.

Liberal justice Ruth Bader Ginsburg interrupted the response.

"You seem in your answers to be departing from the Senate not available and making quite another justification for this," she said. "The Senate, I think to be candid, the Senate is always available. They can be called back on very short notice. So what is it that's the constitutional flaw here?"

The case could have long reaching implications for labor policy moving forward.

The appointment of union attorneys Sharon Block and Richard Griffin reflected the administration's use of regulatory agencies, rather than legislation, to accomplish its goals. Griffin and Block gave the board a reliable pro-union majority that overturned decades of precedent to make union organizing easier.

Those decisions are now in jeopardy. If the Supreme Court agrees that Obama's appointments were unconstitutional, the board could be forced to re-hear the hundreds of cases that it handled while Block and Griffin were on the board. That problem was exacerbated by the fact that the NLRB ignored the D.C. Circuit decision and continued to issue rulings.

The Roberts Court has thrown out thousands of NLRB rulings en masse before. The court invalidated more than 1,000 decisions when it ruled that the board's make-up was unconstitutional in 2010’s New Process Steel decision. The NLRB was forced to reopen more than 100 cases, creating a backlog on its busy docket.

Several court observers told the Washington Free Beacon that the case could mire labor policy in continued uncertainty. Marshall Babson, a former NLRB board member and current labor attorney at Seyfarth Shaw, said that the administration did not fare well under the questioning.

"I think it was a tough day for these appointments at the least and a tough day for presidential power generally," Babson said. "I thought across the board that the court was not hospitable to [the solicitor general]. ... There’s some general reluctance among justices to allow the president to tell senate when Senate is in recess."

Peter Schaumber, another former NLRB board member, said that Obama's push to force quick policy changes without Congress' approval could backfire.

"I think more likely than not the court is going to find the presidential appointments unconstitutional," he said. "They will have to reissue hundreds of decisions … and I don’t think these recess appointments were needed at all."