The Supreme Court #1: NLRB v. Canning

This is the first in what I plan to be a series of posts about pending cases before the United States Supreme Court.

In each of these postings I hope to offer a review of a particular case, the background behind it and a look at where it might go in the future.

This week we will take a look at the case of National Labor Relations Board v. Noel Canning

This case comes to the court on appeal from the DC Court of Appeals and deals with the power of the President to make recess appointments under Article II, Section 2, Clause 3 which states:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

As you might imagine this case has the potential to have significant impact on a number of areas of the law. Presidential appointments are among the most powerful things and administration can do and while high-profile judicial appointments tend to get most of the attention is the rarely noticed middle-management type of appointments that have direct impact on our daily lives.

In addition the case is going to attract a lot of media attention because of the political nature of the case.

This case for example deals with appointments to the National Labor Relations Board which obviously has a significant impact on labor-management relations and would certainly be important to any business or labor client. Similarly the president’s power to appoint officials to various other executive branch positions can impact everything from administrative law to Social Security law.

Although it is tempting to see this as a partisan case it is worth noting that many of the same arguments being made by those opposing the appointments by President Obama were raised by those opposing past appointments by President Bush.

Like many things in Washington DC these days it seems the party in the WH shapes the arguments made by advocates in court.

Before delving into the specific case it might be helpful to briefly review the background of the clause and how it has been applied.

When we look at environment in which this clause was adopted (IE the late 18th century) we have to consider the practicalities the drafters were considering.

For one thing it is really something of a misinterpretation to look at the three branches of government as equal. Although certainly the founders intended that the branches should have checks and balances on each other they put the three articles in the order they did for a specific reason.
Article 1 was first because the Congress was seen as the most powerful branch in large part because it was the most directly accountable to the people. Articles 2 and 3 were placed where they were because the presidency and judiciary were considered to be second and third in influence again largely because of their responsiveness to the electorate.

Because the Congress was supposed to be the people’s representatives it was also expected to be a part time institution and was only expected to be in session for about half of the year. During the remainder of the year the members were supposed to be back home either meeting with their constituents or conducting their own businesses since they were supposed to be citizen legislators with farms or businesses to maintain at home

Indeed under Article I Section 4 the Congress is only required to come into session once a year on the first Monday in December so theoretically they could meet just a few weeks a year. Interestingly the original Constitution doesn’t even provide for when the President would take office that was determined by the old Confederation Congress.

As to Congress they would usually have two sessions during each Congress, one running from December of odd years to May of even years (called the long session) and one running from December of even years to February of odd years (called the short session) plus a brief Senate session in March when a new President came into office and they needed to confirm a new Cabinet.

When Congress was out of session the President was expected to act to carry out the laws and administer the government. Since it was anticipated that vacancies might occur in executive branch offices and since it would be impractical to have the Senate come back into session (given travel and communication times) the clause allowed the President to fill these vacancies.

It was never really intended for the President to use the clause to name someone who the Senate refused to confirm but as a practical matter the clause has evolved to that purpose.

The long/short session pattern continued from the 1790s through the 1930s when the Constitution was amended to start both the Congress and the President in January. It was during this same time that the advent of things like air conditioning allowed year long sessions to be held and from that point Congress tended to avoid the old breaks.

Prior to this change it was relatively easy to determine when Congress was in recess because they were either in office or they weren’t. With the year long session and multiple breaks within the session in has become harder.

Which brings us to the case at hand.

In this particular case Pres. Obama appointed members to the National Labor Relations Board. The appointments took place on January 4, 2012, one day after the second session of the 112th Congress convened and two days before the Senate held a session on January 6th.

Mr. Canning is a business owner who was impacted by the decisions of the NLRB and he objected to the decisions in part by contending that the president did not have the authority to make the appointments because the Senate was not in recess but merely on a short break during a session.

By contrast the administration argued that the President acted in accordance with the long-established policy carried out by Presidents of both parties. They also point out that the session on January 6th was a pro forma session and the Senate did not actually conduct any business.

Of course both sides attracted a number of amicus briefs covering a broad range of positions between these two arguments.

The case eventually made its way to the United States Court of Appeals for the District of Columbia and the panel of that court hearing the case ruled unanimously that the appointments were invalid

They based this ruling on two points.

1. The court held that since the senate had opened on the 3rd and had a pro forma session on the 6th that they were not in recess.

2. The court also held that even if the Senate had been in recess the vacancies in question did not occur during that recess (IE between the 3rd and the 6th) and thus were not valid.

The 2nd position seems to be quite interesting. Presidents of both parties have used the recess clause to make appointments and the arguments have tended to focus on whether or not it was during a valid recess.

But the language of the clause seems pretty clear in requiring the vacancy occur during the recess and if the USSC upholds this view then the debate could be severely curtailed

On a side note many scholars (including former Justice Stevens) hold that the recess clause cannot apply to any Article III judicial appointments since it clearly states the appointments are for life yet the recess clause appointment is temporary. If the court were to eventually adopt this position we would also see many appointments vanish.

In any event the case was appealed to the US Supreme Court. So far they have not set an argument date which suggests that they will hear the case sometime next year and may well want the parties to provide additional briefings to discuss the complex issues.

Of course the whole debate over “vacancy” revolves around exactly when a vacancy arises and if that vacancy can occur more than once (for example if the Senate refuses to confirm a nominee and then goes into recess some argue that a new vacancy arises with the rejection of the new nominee).

In making this argument they point to the fact that this seems to have been the interpretation in the past since appointments were made under similar circumstances.

Those who support the DC Circuit contend that the mere fact the practice has occurred in the past does not mean that it is right and that there have been arguments made all along that the practice was improper.

A similar debate goes around the definition of recess. As we have previously discussed in the early days (pre 20th amendment) it was easier to determine what a recess was because the Congress generally had two clear sessions with two clear recesses while today they have what amounts to one very long session with many short breaks.

This leads to the question of how long a break needs to be to count as a recess. In theory the Senate could be argued to go into recess at the end of every day and thus the President could make as many midnight appointments as they want. I doubt they will make this argument but in theory it is the logical extension of the view

On the other end of the debate is the argument that the only time the Senate is in recess is the brief period between then end of session in December and the start of a new session in January (the position at least partly adopted by the DC District Court)

Given that Congress does sometimes take breaks for several weeks this is also seems to be a bit out of line to me.

Another potential side issue here is the fact that the NLRB was not simply experiencing a vacancy but was actually unable to form a quorum (appointments to the board had been blocked during both the Bush and Obama years) and thus it could be argued that the intent of the clause had arisen (IE the need to keep things functioning).

I think this will be interesting to watch as both sides have good arguments and in many ways these issues have been brewing for years but often ignored or sidestepped.

I am not sure which way to go on this case and will be watching the arguments to see which seems more persuasive. It could be argued that the real purpose behind the recess appointments clause is no longer valid (IE it is no longer a problem to get the Senate back to fill a vacancy quickly).

My guess is that the court will do as it has in other cases and split the difference. They will hold that there was not a recess and thus the appointments were invalid but they will probably reverse the DC Circuit on the issue of the vacancy needing to take place during the recess.

However I do not see them adopting a specific time frame for how long the recess needs to be to qualify, thus making it likely the issue will come before the court again.

But it certainly will be worth following.

Cross posted from The Moderate Voice

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Posted on November 18, 2013, in Art 2 Sect 3, Art 2 Sect 4, Article 1, Article II, Constitution, The Senate. Bookmark the permalink. Leave a comment.

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