Bench Memos

This Morning’s Argument in NLRB v. Noel Canning

Today, the Supreme Court heard oral argument in National Labor Relations Board (NLRB) v. Noel Canning. At issue is whether President Obama unconstitutionally used the presidential recess-appointment power to install three officials (two of whom were union loyalists) on the NLRB on January 4, 2012. At the time, the Senate was blocking these appointments by holding pro forma sessions every three days. The administration nevertheless forged ahead with its recess appointments only a day after the Senate had begun its constitutionally mandated yearly session, formally ending the recess that had begun in December.

The arguments seemed to be a decided success for those challenging the appointments. The justices across the board seemed to appreciate how ad hoc and self-serving the administration’s defense of its actions are. So I don’t expect this to be a 5–4 decision that gets invoked by liberals as evidence of a conservative bench and by conservatives as evidence of how politicized the liberal justices have become. The result could be unanimous or nearly so, although the reasoning could well be fractured.

Today’s arguments focused on a few major themes. First, the justices seemed to agree that, at least in some ways, the constitutional text, its purpose, and the historical practice may be at odds in this case. The challengers of the appointments advocated following the text where there was a divergence, and the solicitor general claimed practice should trump, but neither side conceded their position wasn’t supported by text, history, and common sense.

Another major theme was how the structures of government were intended to work. Challengers of the appointments made a strong defense for the constitutional checks and balances being a way of securing liberty, and viewed even the occasional logjam as a feature, not a bug. The administration seemed at times to be arguing that if the president had sufficient resistance to his nominees, all constitutional bets were off. That extremely aggressive view of presidential power didn’t seem to get too much traction.

A final theme that will likely determine the outcome of the case is deference. Almost all the justices seemed to agree that it made the most sense to defer to the Senate on determinations of when it considered itself to be in recess. Since the Senate clearly considered itself to be in session (even if only pro forma) at the time, there simply could not have been a recess during which to make recess appointments.

There’s a lot more to say about Noel Canning, but here are a few bullet points. First, there is no existing Supreme Court precedent on this issue, so the Court is taking a serious look at the meaning of the constitutional text. That fact alone makes this an interesting case, and probably the most important case about the Constitution’s text since District of Columbia v. Heller.

Second, although presidents of both parties have used recess appointments generally (although none quite so defiantly as President Obama), rejection of these particular appointments would be a stern rebuke to President Obama, who has consistently tried to avoid the Constitution’s checks and balances through unilateral regulatory activity and refusal to enforce other laws. In light of this pattern, it is unlikely that the Supreme Court would accept the solicitor general’s argument that the Supreme Court should let the president have the final say on whether the Senate is in recess.

Third, holding these recess appointments unconstitutional could have immediate consequences for other agencies that are participating in the president’s unilateralist agenda. Consumer Financial Protection Board director Richard Cordray, for instance, received a putative recess appointment on the same day as the challenged NLRB appointees, and served in that capacity until he was confirmed by the Senate last summer through the normal appointment process. Holding the NLRB recess appointments to be illegal would raise serious questions about the actions Cordray took during his recess appointment.

Finally, if the Supreme Court does side with the Obama administration to reverse the D.C. Circuit, we can expect President Obama to use the recess appointments power to pack the courts with judges who have been hand-selected to rubber-stamp his regulatory ambitions and the administration with officers even more unabashedly liberal than his current ones. Reversal would also signal to future presidents that Congress doesn’t have a significant role to play in limiting the executive branch’s power. And that would be the worst outcome of all.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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