Today, the Supreme Court heard oral arguments in Noel Canning v. NLRB, in which the D.C. Circuit struck down President Obama’s recess appointments to the National Labor Relations Board. The question is whether the president’s power under Article II of the Constitution “to fill up all Vacancies that may happen during the Recess of the Senate” allows appointments for (a) vacancies that came open while the Senate was in session and while (b) the Senate is in pro forma session (i.e., it is open but not transacting any legislative business).
In Noel Canning, President Obama appointed officers to the NLRB to positions that came open while the Senate was in session. He also appointed them while the Senate was in a pro forma session. Critics have rightly attacked President Obama for aggrandizing presidential power. The original understanding of the clause appears to support the D.C. Circuit’s position, but by practice presidents had made recess appointments while the Senate was out of session for more than three days (or any time in between sessions), without Senate pushback.
There are two reasons to fault President Obama, no matter whether one agrees or disagrees with an originalist approach to interpreting the Constitution. First, President Obama risked executive power by upsetting a settled arrangement that had given the president a great deal of flexibility, all in the cause of achieving the short-term, partisan goal of advancing his pro-union agenda. Presidents, I think, should make broader claims of presidential power when the stakes for the nation and the office are higher than whether Boeing should be allowed to open a plant in South Carolina.
Second, and much worse, is that President Obama sought the power to decide when the Senate is in session. In this case, President Obama claimed that the Senate’s pro forma session was not a real session under the Constitution, and therefore he could do as he liked. This is not for the president to decide. Under the separation of powers, each branch decides its own rules of decision — the Congress and president cannot tell the Supreme Court what majorities it must have to decide a case, for example, and the president cannot dictate Congress’s procedures for impeachment. Similarly, neither the president nor the Supreme Court can impose on Congress a set of internal rules. President Obama’s attempt to seize such a power represents a serious violation of the separation of powers, one that must not be recognized by the other branches.