In a rare unanimous decision, all nine justices of the U.S. Supreme Court agreed with the outcome in NLRB v. Canning. The Supreme Court found that President Obama’s recess appointments to the National Labor Relations Board (NLRB) were unconstitutional. However, the judicial reasoning of the court’s majority (Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan) and that of the four concurring justices (Scalia, Thomas, Roberts, and Alito) were significantly different.
The facts of the case involved a soft drink distributor, Noel Canning Company, which had been found by the NLRB to have committed certain unfair labor practices. The finding of unfair practices, however, was rendered by an NLRB that contained three appointees who had been placed on the labor board by President Obama using what he claimed was his recess appointment power. His claim of this power has now been found to have no lawful basis; the appointments have been nullified.
Besides agreeing that Obama’s appointments were unconstitutional, where do the majority and concurring members agree? The justices agree that the normal method of appointment requires Senate approval of the president’s nominations. Principal offices in the government should not be filled by executive action alone, but instead with the concurrence of the Senate. Moreover, all nine justices agree that the Constitution does provide for the president to “fill up all Vacancies that may have happened during the Recess of the Senate…” [Article II, Sec. 2, clause 3]—the recess appointment power.
From that point on, the members of the high court are not in agreement. The first judicial fissure concerns what exactly constitutes a “recess.” There is no doubt that the term includes the traditionally designated breaks between one called session of Congress and the next called session. Each Congress spans two calendar years. For example, we are more than half way through the 113th Congress. The first session began in January 2013, and the second began in January 2014. The period of unavailability—the break between called sessions—is a recess. The concurring justices say that this is the only kind of recess intended by the Founders to trigger the president’s recess power. The meaning of the term “recess” in the Constitution is clear, they say.
The majority justices, by contrast, say that the term “recess” is broader. Periods in which business is not being conducted, even if occurring within a called session, should also be regarded as a recess. These five justices cite historical occasions when past presidents made appointments during such breaks without those appointments being challenged. The concurring members counter that past historical appointments were unauthorized by the text of the Constitution and therefore should not serve as a basis for a judicial amendment of the unambiguous language.
Furthermore, the concurring members of the court say that a proper reading of the recess appointment clause requires that the vacancy itself must have arisen during a traditional recess. The majority disagrees, saying that a vacancy which occurs before a recess but continues into a period of recess can be filled by the president.
Finally, the majority agrees to rely on the Senate’s determination that it is “in session” and not recessed even if this depends upon the Senate holding pro forma sessions under its own rules. Justice Scalia and his concurring justices view this legislatively dependent check on executive power as a poor, weak substitute for the clear, limiting language of the Constitution itself. They also fear that based on the majority’s reasoning, this decision could well have the effect of “aggrandizing the Presidency beyond its constitutional bounds, and undermining respect for the separation of powers.”
In short, President Obama’s appointments to the NLRB are defeated; but the recess appointment power is still very much alive. The Supreme Court has spoken.
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