- Can the President exercise the recess-appointment power during a recess while the Senate is still in session? Can the President exercise this power when the Senate convenes every three days in pro forma sessions?
- Can the President use the recess-appointment power to fill any vacancy that exists during a recess, or only to fill those vacancies that arose during the recess?
In February 2012, the National Labor Relations Board ("NLRB") upheld a ruling that the soft-drink bottler Noel Canning had violated the National Labor Relations Act ("NLRA"). Noel Canning argued that the NLRB decision was invalid because, at the time, the NLRB had lacked the minimum number of officials required to enforce the NLRA. Specifically, Noel Canning argued that President Obama, in January 2012, had improperly appointed three of the NLRB’s members under the Recess Appointments Clause. The Supreme Court will determine (1) whether the Recess Appointments Clause authorizes the President to make appointments for vacancies that do not arise during a Senate recess and (2) whether the President can exercise the power between pro forma sessions or only during breaks between enumerated sessions. While the NLRB argues that a narrow reading of the Recess Appointments Clause threatens the executive branch’s ability to pragmatically overcome Senate delays in approving nominees, Noel Canning counters that the President cannot exercise the recess appointment power to fill vacancies that did not arise during breaks between enumerated sessions. The Court's ruling will affect the President’s ability to appoint officials without the Senate’s approval during pro forma recesses. The Court’s decision could invalidate earlier executive appointments (and government actions arising from those appointments) that have been made under the Recess Appointments Clause.
Questions as Framed for the Court by the Parties
The Recess Appointments Clause of the Constitution provides that "[t]he 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." Art. II, § 2, C1. 3. The questions presented are as follows:
- Whether the President's recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.
- Whether the President's recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.
Note: In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
In January 2013, the D.C. Circuit Court of Appeals held that a February 2012 decision by the National Labor Relations Board (“NLRB” or “the Board”) was invalid because the Board did not have a sufficient number of board members to act at the time.
The Board decision addressed a labor dispute between Noel Canning, a bottling company, and the International Brotherhood of Teamsters Local 760 (“the Union”). The dispute centered around two proposals for a pay increase to the Union’s pension fund. The two sides had settled all issues in a new labor agreement except for the allocation of wage increases to pension funds by December 2010. Witnesses to the final negotiation said that Noel Canning’s president agreed to adopt whichever proposal the Union members voted for. Although the Union proposal at the final negotiation had no cap on the proportion of the $0.40 per hour salary increase that could be allocated to the pension fund, a Noel Canning email sent to the Union before the vote capped the amount at $0.10. Noel Canning’s president claimed that the earlier agreement was not in writing and therefore nonbinding, but the Union membership chose the earlier uncapped proposal. When presented with this result, Noel Canning refused to execute a written agreement, and the Union accused Noel Canning of unfair labor practices.
An administrative law judge (“ALJ”) concluded that Noel Canning had violated the National Labor Relations Act (29 U.S.C. § 158) by refusing to execute the agreement in writing. In February 2012, an NLRB panel affirmed the ALJ.
In order to administer and enforce the NLRA, the NLRB must have a minimum of three members to constitute a quorum Accordingly, Noel Canning filed a petition for review, arguing that in February 2012, the NLRB lacked the minimum number of members required to enforce the NLRA.
The President had appointed three members to the NLRB on January 4, 2012 pursuant to the Recess Appointments Clause. The appointments occurred in between pro forma Senate sessions, during which the Senate, by unanimous agreement, met every third business day during an intrasession Senate recess from December 20, 2011 to January 23, 2012. The agreement explicitly stated that “no business [would be] conducted.” Because the President’s three appointments to the NLRB occurred in between these pro forma sessions, Noel Canning argued that the NLRB could not have lawfully acted because it lacked the minimum of properly appointed officials necessary to enforce the NLRA.
In January 2013, the U.S. Court of Appeals for the District of Columbia held that the President’s appointments were constitutionally invalid. Accordingly, the court concluded that the Board lacked a quorum in February 2012 and vacated the Board’s order. The D.C. Circuit reasoned that the Recess Appointments Power is limited to appointments during intersession recesses, defined as “when a legislature adjourns . . . without specifying a day for its return.” The court also limited the appointment power to vacancies that “happen” during the Recess. The NLRB petitioned for a writ of certiorari on April 25, 2013, which the Supreme Court granted on June 24, 2013.
This case examines the scope of the President’s recess appointment power; specifically, whether the President can exercise this power to appoint officials without Senate approval during a recess while Congress is still in session, or only between sessions of Congress. The Court’s decision will impact the validity of hundreds of presidential appointments, and accordingly, the validity of decisions of hundreds of federal officials.
Numerous amici in support of the NLRB argue that the Recess Appointments Clause authorizes the President to appoint government officials during intrasession recesses while the Senate is still in session. For example, Professor Victor Williams (“Professor Williams”) argues that a stringent reading of the Recess Appointments Clause is inconsistent with the realities of political factionalism that disables the democratic confirmation process. Similarly, the Brennan Center for Justice (“Brennan Center”) argues that the Recess Appointments Clause is a crucial check against the extreme partisan tactics that the Senate uses to obstruct presidential appointments. According to the Brennan Center, limiting the recess appointment power to inter-session recesses enables a Senate minority to obstruct the appointment of nominees and paralyze entire agencies. Professor Williams contends that the Senate has used methods such as leveraging policy negotiations to extract presidential withdrawal of nominees, terminating sessions, and withholding confirmations to check executive power. Therefore, the Brennan Center argues, the recess appointments power functions as an essential check against the political factionalism that spurs the Senate to block presidential nominees.
Senator Mitch McConnell, in support of Noel Canning, counters that a flexible interpretation of the Recess Appointments Clause would incorrectly empower the President to determine when the Senate is unavailable and therefore allow the President to exclude the Senate from the appointment process. (In a December 9 order, the Court granted McConnell 15 minutes at oral argument in support of Noel Canning.) The International Longshore and Warehouse Union (“Longshore Union”) also argues that enabling the President to fill any vacancy during a recess regardless of when it occurred enables the President to strategically wait until a recess before filling a vacancy. Professor Tuan Samahon (“Professor Samahon”) adds that the Senate has addressed many of the NLRB supporters’ concerns by recently abolishing the use of the filibuster for most presidential nominations. In light of the termination of the Senate’s filibuster power, Professor Samahon argues that a presidential nominee now requires only a majority of the Senate’s support and can no longer be blocked by a minority in the Senate.
EFFECT OF INVALIDATING PREVIOUS APPOINTMENTS
Professor Williams argues that affirming the D.C. Circuit’s limitation on presidential recess appointments to inter-session recesses would fundamentally disrupt the finality of appointments and the stability of agencies in the federal government. Specifically, Professor Williams argues that such an interpretation of the recess appointment power threatens the validity of the 329 intrasession appointments made by presidents since 1981. According to Professor Williams, the challenges to commissions made in 2012 to the NLRB under the Circuit’s interpretation of the recess appointment power has already resulted in both economic and political disruptions.
Daycon Products Company (“Daycon”), in support of Noel Canning, counters that concerns over stability and invalidity are “overblown,” and that the “ordinary doctrine of repose” would ensure that most of the earlier appointments about which the NLRB expresses concern would remain unchallenged. The first of these doctrines that Dayton presents is a six-year “catch-all” statute of limitations that insulates earlier appointments from administration action challenges. Under the same doctrine, Daycon also argues that a properly appointed official can ratify improperly made appointments. Where the statute of limitations does not offer protection, Daycon contests that de facto validity of officers acting “under the color of official title” protects officers from challenges that were to arise from limiting the recess appointment power to intersession appointments.
The Appointments Clause of the United States Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” However, the Recess Appointments Clause (“Clause”) allows the Executive 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.” The Clause acknowledges that the Senate may not be available to give “advice and consent” at all times, and therefore allows the President to continue to appoint officers during those recesses if necessary.
NLRB and Noel Canning disagree on the parameters of the term “recess” covered by the Recess Appointments Clause. First, NLRB argues that the Clause applies to both inter-session recesses (recesses that take place between one enumerated session of Congress and the next enumerated session) and intra-session recesses (recesses that take place within an enumerated session of Congress). Noel Canning, on the other hand, states that the plain text of the Clause indicates that the Clause only applies to inter-session recesses. Second, NLRB argues that the Clause allows the President to fill vacancies that arise before the recess, as well as vacancies that arise during the recess. Noel Canning argues that the Clause only allows the President to fill vacancies that first arise during the recess.
The parties also disagree as to whether the Clause applies to pro forma sessions. A pro forma session is a short meeting of the House or Senate, sometimes lasting only minutes, that satisfies the obligation under the Adjournment Clause that “neither chamber can adjourn for more than three days without the consent of the other,” but gives Congressmen the assurance that no business will be conducted in the specified time period. The NLRB contends that the types of recesses covered by the Clause include pro forma sessions. Because the Constitution provides that “[n]either House, during the Session of the Congress, shall, without the Consent of the other, adjourn for more than three days,” the Senate may choose to adopt pro forma sessions. The pro forma session adopted by the Senate in the instant case provided that the Senate would adjourn on December 17, 2011, and reconvene only for short pro forma sessions “with no business conducted” once every three days until January 20, 2012. In contrast to the NLRB, Noel Canning argues that pro forma sessions are not recesses as specified in the Clause, and thus do not allow the President make appointments during these periods.
INTRA-SESSION AND INTER-SESSION RECESSES
The NLRB argues that the Court should interpret the Constitution as authorizing presidential appointments during intra-session and inter-session recesses. The NLRB argues that recess was understood by the framers and is understood in modern times to be a “period of cessation from usual work” and adds that the Third Circuit has interpreted “recess” to have some connation of “longevity.” Specifically, the NLRB asserts that the framers’ understanding of the term “recess” derived from British Parliamentary practice, which referred to breaks during and between sessions as recesses.The NLRB thus argues that the Constitution’s reference to “the Recess” does not signify that there is only one recess—the inter-session recess—because the Constitution refers to reoccurring events in other sections with the article “the.” The NLRB also argues that the Framers’ decision to use the word “recess” instead of “adjournment” does not signify that the clause only applies to inter-session recesses because adjournment was historically used as a verb, rather than a noun, and because regardless of the choice of words, the executive branch has consistently understood that short intra-session breaks are de minimis and do not trigger the President’s recess-appointment authority.
Noel Canning disagrees with the NLRB and argues that “recess” cannot be interpreted in a vacuum. Noel Canning argues that the colloquial interpretation of recess would lead to unacceptable results, such as construing the break between daily sessions as a recess that gives the President the appointment power every day when the Senate adjourns. Moreover, Noel Canning claims that under the NLRB’s broad reading of “recess,” intra-session appointees would serve twice as long as inter-session appointees and that presidents could easily bypass the advice and consent process by waiting until any recess to make an intra-session appointment. Noel Canning further argues that the NLRB’s claims for de minimis exceptions to intra-session appointments have no basis in the law. Instead, Noel Canning argues for a plain reading of the constitutional text. According to Noel Canning, the Clause ties “the Recess of the Senate” to the Senate’s “next session” and indicates that the Clause applies only to inter-session recesses. Noel Canning also argues that the phrase “the Recess” plainly refers to formal Recesses between enumerated sessions of Congress. Noel Canning also argues that the NLRB’s argument on British Parliamentary parlance is faulty, and states that Parliament distinguished between short breaks (“adjournments”) and longer breaks (“prorations”) and the framers consciously adopted this practice.
The NLRB further argues that long-standing practice supports its view that the Recess Appointments Clause applies to intra-session recess. Although presidents rarely made intra-session appointments in the first 150 years of the country’s history, the NLRB notes that as intra-session recesses occurred more frequently, so did intra-session appointments. Before the Civil War, the NLRB claims, there were only five intra-session recesses that exceeded three days; between the Civil War and 1943, there were only four years with longer intra-session recesses, but in those four instances, the President made intra-session recess appointments. Moreover, the NLRB points out that in 1905 the Judiciary Committee interpreted “recess” to be a “period of time when the Senate is not sitting in regular or extraordinary session.” During World War II, there were months-long intra-session recesses on five occasions, during which multiple recess appointments were made. Since President Truman, nearly all presidents have made intra-session recess appointments, with the exceptions of Presidents Kennedy, Johnson, and Ford.
Noel Canning disagrees that the President’s authority to make intra-session recess appointments has been accepted over the past 100 years. Specifically, Noel Canning contends that the executive branch’s reading of valid intra-session appointments has been inconsistent: in 1921, Attorney General Harry Daugherty argued that “recess” could not include a 5 to 10-day adjournment; on the other hand, a 1993 district court filing argued that a 10-day intra-session recess would be defensible; and now, the President seeks a de minimis exception of three days. Noel Canning also contends that the use of the power is a relatively recent phenomenon: whereas Presidents Johnson and Ford did not make intra-session appointments, the practice became increasingly common during the Carter administration as a way of avoiding the Senate advice and consent process.
“VACANCIES THAT MAY HAPPEN DURING THE RECESS”
The NLRB argues that the phrase “Vacancies that may happen during the recess” authorizes the President to fill vacancies that arise during and before a recess. Although the dictionary defines “happens” as something that “comes to pass,” the NLRB argues that a vacancy does not occur in an instant, but rather, is a continuing event until the vacancy is filled. Moreover, the NLRB argues that its interpretation would still limit the appointment power by preventing the President from filling known future vacancies.
Noel Canning counters that a plain reading of the phrase “Vacancies that may happen” limits the recess appointment power to vacancies that arise during a recess. It argues that the NLRB’s analogizing vacancies to wars “happening” over a period of time is misplaced because while a war involves daily active events (e.g., soldiers shooting), a vacancy arises only once and then exists until it is filled.
PRO FORMA SESSIONS AS RECESSES
The NLRB argues that the President can make appointments during pro forma sessions—short sessions in which no business is conducted by the Senate. In its view, when the Senate is conducting only pro forma sessions, the Senate is in recess for the purposes of the Clause. The NLRB notes that the 1905 Senate Judiciary Committee defined recess as “the period of time when . . . members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments”; accordingly, the NLRB argues that pro forma sessions fit this description because the sessions are only held as a technicality and are not Senate sessions in a substantive sense For example, during the pro forma session at issue when President Obama filled the NLRB vacancies, the Senate did not consider any bills or nominees, pass legislation, or debate; each pro forma session lasted no more than 30 seconds. The NLRB further argues that the non-performance of routine Senate rules and procedures, such as legislative prayer and the Pledge of Allegiance, suggests that the pro forma sessions were really a continuous Senate recess.
Noel Canning counters that pro forma sessions are fully functional Senate sessions. According to Noel Canning, during the instant pro forma sessions, the presiding Senator could have passed legislation, confirmed nominees, or exercised any other Senate power so long as there was unanimous consent. Noel Canning also disputes the NLRB’s characterization that pre-session orders render pro forma sessions as recesses, because the Senate must make relevant authorizations for both recesses and adjournments. Further, Noel Canning argues that it is irrelevant whether pro forma sessions are sparsely attended because senators have the same attendance obligation at pro forma sessions as any other session: any senator could have demonstrated at a pro forma session that quorum was not present by conducting a quorum call, and could afterwards make a motion to request the attendance of absent Senators.
This case will address a fundamental balance of power between the federal executive and legislative branches of government. Specifically, the Court will address the scope of the President’s power under the Recess Appointments Clause and how congressional rules, like pro forma sessions, affect the boundaries of executive power. The NLRB argues that past presidential practice, congressional consent, and the policy rationale behind the Recess Appointments Clause support the president’s power to make appointments during intra-session recesses. Noel Canning counters that the plain meaning of the Constitution and the framers’ intentions require that the Recess Appointments Clause be interpreted narrowly. Noel Canning argues that appointments are only valid when there is an inter-session recess and when the vacancy at issue arises during the recess. While the recent Senate amendment to the filibuster rule may result in decreasing the President’s reliance on the Recess Appointments Clause, an immediate effect of the Court’s ruling may be to potentially invalidate thousands of decisions issued by the NLRB since the President’s recess appointments in 2012.
- Charlie Savage, New York Times, Court Rejects Obama Move to Fill Posts (Jan. 25, 2013).
- Robyn Hagan Cain, FindLaw, D.C. Circuit: Obama’s NLRB Recess Appointments Unconstitutional (Jan. 25, 2013).
- Peter M. Shane, Bloomberg Law, The Future of Recess Appointments in Light of Noel Canning v. NLRB.
- Jeremy W. Peters, New York Times, In Landmark Vote, Senate Limits Use of the Filibuster (Nov. 21, 2013).