“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–U.S. Constitution, Art. II, sec 2, cl. 3
On the same day that the U.S. Supreme Court justices handed down its decision that violent anti-choice protesters can block women from entering women’s clinics, they also ruled—again unanimously—in NLRB v. Noel Canning that the U.S. president’s constitutional rights to make recess appointments should be limited. The case came from President Obama’s recess appointments in 2012 to the National Labor Relations Board (NLRB) after the GOP members of the senate stopped the board from functioning because they didn’t want to accept any of the president’s nominees.
The question of legal appointments arose after a NLRB ruling against Noel Canning because of its unfair labor practices. The DC Circuit Court of Appeals agreed with the NLRB that Noel Canning was wrong but agreed with Noel Canning that the NLRB lacked a quorum because three of the five Board members had been invalidly appointed. Both the court of appeals and the Supreme Court ruled that a three-day recess is not long enough for the president to make appointments.
When the president made the appointments to the NLRB, the filibuster of 60 votes for approval of nominees, now eliminated, was still in effect. In addition, the senate has approved two of the three appointments that the president made at that time; the other one no longer sits on the board. The question of the appointments’ appropriateness came when the GOP refused to recess while they were out of town. Despite a 30-day recess, a senator conducted a “pro forma session” every three days by strolling into the chamber, pounding the gavel, and then closing the session within a few minutes. The only purpose was to block presidential appointments: there was no business conducted: presidential messages could not be placed before the senate, the chamber was almost empty, and attendance was not required.
GOP senators never objected to the specific nominees. They just wanted to stop the NLRB from functioning, and it couldn’t function without members. After the DC Circuit Court of Appeals ruled that the appointments were illegal, President Obama re-nominated his appointees. The GOP senators filibustered again, and the Democratic senators changed senate rules to require only 50 votes to invoke cloture on executive and judicial nominations. Along with other delayed nominees, the NLRB appointees moved forward.
The SCOTUS decision is the first time in the 225 years of the constitution that the Court has considered recess appointments. Its ruling read, “The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess—intra-session or intersession—of sufficient length.” It defines “intra-session” recess as “breaks in the midst of a formal session” and “intersession” as “breaks between formal sessions of the Senate.” The majority of justices determined that the president can make recess appointments if the senate takes a break between sessions or takes time off during a session, but the recess must be at least ten days.
So the president, according to the majority opinion, still holds the power to make recess appointments to vacancies when the Senate is either taking a break between sessions or taking time off during a session–if it’s at least ten days. The president is not prone to making recess appointments. He’s made only 29, far fewer than George W. Bush’s 171 and Ronald Reagan’s 243.
About 1,200 executive-branch positions require senate approval. The chamber could spend all its time on the constitution’s “advise and consent” mandate. In the 21st century, the process is more a method for senators to vent their ire on a president of the opposing party. Even worse than voting down nominees, the GOP senators during President Obama’s terms have followed a passive-aggressive approach of refusing to vote. Their refusal for not taking a vote for the NLRB was not unique. They were so intent on killing the Consumer Financial Protection Bureau (CFPB) that they didn’t approve a director for 18 months. The Bureau of Alcohol, Tobacco, Firearms and Explosives went without a director for seven years after the position was mandated to have senate approval. Only after the NRA lifted its objections was the president able to get a director for this agency.
By 5-4, a minority of Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas, and Antonin Scalia failed to overturn the lower court ruling that the president could not make any recess appointments except at the end of each year. They also failed to deny all recess appointments except when the vacancies were created while the senate was in full recess between sessions.
The constitution empowers the senate to “determine the rules of its proceedings, but SCOTUS has removed that right. If the minority position ha succeeded, as Justice Stephen Breyer pointed out, “Justice Scalia would render illegitimate thousands of recess appointments reaching all the way back to the founding era. More than that: Calling the Clause an ‘anachronism,’ he would basically read it out of the Constitution.”
SCOTUS’ ruling in Noel Canning also mandated that recesses of fewer than 10 days between sessions are “presumptively” too short to count in the constitutional reappointment right. Yet the Court stated that it must defer heavily to the Senate’s authority to determine “how and when to conduct its business.” Thus the justices said that they won’t tell the senate what to do, but they decided a minimum of recess of ten days for appointments. They have removed the right of the senate to set rules and rewritten the constitution.
There’s a definite irony here: the four justices who want to totally rewrite the constitution by eliminating any recess appointments are the originalists—meaning that they believe rulings should be based on what the authors actually meant. In many cases, they must be channeling the writers’ thoughts because the document doesn’t deal with much of 21st century life.
At this time, the Democratic senate can bring up a vote for nominees because they are the same party as the president. If the GOP takes over the senate in this year’s election, the Senate will probably refuse to hold any votes for appointments. In the future, a House of Representatives can demand adjournment for the senate if it is the same party as the president. If the two chambers disagree, the president can then exercise constitutional authority to unilaterally adjourn Congress for a recess, as the Supreme Court ruled. Unless other justices decide to re-write the constitution in this issue too. The Vacancies Act allows the president to fill vacancies—except in multimember agencies which the NLRB and other important agencies are.
As in yesterday’s ruling that erased buffer zones around Massachusetts’ women’s clinics, the justices showed themselves ignorant of reality. GOP members have been so intent on politicizing the appointment process that they are willing to destroy the United States. Yet, the ruling stated, “Most appointments are not controversial and do not produce friction between the branches.” That’s what this case was about. The justices showed no awareness of the recent senate obstruction of the confirmation process, so much so that routine appointments have been mired in controversy.
Reforms to the filibuster process were necessary because almost half of all cloture motions even considered on nominations in the history of the country were made after Barack Obama became president. Last month 110 executive branch nominees were pending, compared to 32 at the same point in George W. Bush’s second term.
As one senator blatantly said, his reason for opposing appointments to the NLRB was to make the agency “inoperable.” Without the recess appointments for a quorum, the senate could have stopped the NLRB for 2,885 days since 1988—almost eight years. Forty-four senators signed a letter to the president admitting that they opposed Richard Cordray to head the CFPB because of their opposition to the agency.
This is another roadblock that conservatives put in the way of the president carrying out his duties. The only hope with this ruling is that it puts the blame squarely on the senate for the failure to fill federal positions. That chamber is now responsible for failures in the confirmation process.