Bench Memos

NLRB v. Noel Canning: A Reprieve for the Separation of Powers

Today’s decision in NLRB v. Noel Canning was a major loss for the Obama administration, adding to its long list of unanimous losses with the Supreme Court. The case, which I have previously written about here, deals with the constitutionality of President Obama’s appointment of two members to the National Labor Relations Board. Rather than fiddle around with getting Senate approval for his picks, the president purported to use his recess appointment power to bypass the Senate. The problem – pooh-poohed by the president and his backers initially, but endorsed by all nine justices — is that the Senate wasn’t in fact in recess. And the president can’t simply declare that the Senate is in recess when it suits him. The facts of this case are a key example of the aggressive lawlessness that is the hallmark of this administration. So it is a relief to see the Court holding the line on the constitutional limits that keep our government in check.

The majority opinion was written by Justice Breyer for the liberal wing of the court, plus Justice Kennedy. The distinction between the main opinion and Scalia’s concurrence in the judgment for the remaining justices largely turns on a difference in interpretive theories: Should the Court stick with the Constitution’s plain text or should it allow that text to be modified by historical practice and the justices’ view of which outcome best fulfills the Constitution’s broader purposes?

Here’s the text of the recess appointments clause that is causing all the fuss:

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.

Breyer’s opinion asks three questions about the meaning of this clause, finding that the president’s appointments at issue pass two, but fail the third. Scalia would have flunked the president across the board.

The first question is what recesses the clause covers. There are inter-session recesses in between formal sessions of Congress and intra-session recesses like those that occur over the summer. But the text seems to expect only one recess, “the Recess of the Senate.” 

Justice Breyer acknowledged the normal assumption that “the” indicates one specific recess, but determined ultimately that it was sufficiently ambiguous to cover both types of recess. Since the Civil War era at least, Congress has taken intra-session recesses of varying lengths and there have been numerous recess appointments during those recesses, which the Senate and the courts have generally not taken issue with. Breyer views those facts along with his generic reading of “the” to support the president’s position of a broad recess-appointment power covering both types of recesses.

By analogy to the Adjournments Clause in the Constitution and by long tradition both parties agreed that the recess-appointments clause doesn’t apply to recesses of three days or less. But the court looked to historical practice to determine that appointments during recesses of three to ten days are presumptively outside the recess-appointments clause because historically very few appointments have been made during such recesses.

Justice Scalia, on the other hand, would have interpreted the word “the” to have its typical, specific meaning. He also found significant the practice around the founding of only taking an inter-session recess. In addition, he noted the contrived nature of the ten-day presumptive rule invented by the Court. The fact that their analysis required them to basically intuit a rule by counting up the lengths of all congressional recesses (which Breyer conveniently attaches as his first appendix) does suggest that the rule isn’t based on any fundamental principle, instead attempting to conform the Constitution to practice rather than vice versa. 

The second question considered by the Court is what it means for a vacancy to “happen during the Recess.”

The clause could cover only vacancies that first come into existence during a recess, or it could also include vacancies that arose prior to the recess but persist into it. Justice Breyer said both types of vacancies are covered – again agreeing with the government. He acknowledged a longstanding ambiguity in the phrase that the opinion acknowledged “permits, though it does not naturally favor” the government’s position. But, given the ambiguity, the Court again went with historical practice.

Presidents as far back as James Madison have made recess appointments under such circumstances. The Senate, while it initially pushed back on that practice, has since made peace with it. Breyer even went so far as to conduct a quasi-statistical analysis of some “random samples” of more recent practice to show how many recess appointments occurred for vacancies that arose pre-recess. (Those appointments are included as his second appendix and may spur SCOTUSblog to add data on appendix pages per justice to its stat pack. I’m not sure why a “random sample” based on only 30 years of data is the best way to evaluate a 200-year-old historical record, but that’s an issue for another day.)

Justice Scalia predictably took issue with the main decision’s willingness to throw the text of the Constitution out when it conflicted with longstanding practice. He ridiculed this “adverse-possession theory of executive authority” by which “Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not ‘upset the compromises and working arrangements that the elected branches of Government themselves have reached.’” What is perhaps most problematic about this new theory is that Justice Breyer seems quite aware he is engaging in linguistic gymnastics, but is willing to contort his meaning if it means he can avoid overturning so many constitutional violations. It puts to mind the observation comedian Eddie Izzard made about mass murderers:

If somebody kills someone that’s murder, you go to prison. If you kill ten people, you go to Texas, they hit you with a brick, that’s what they do. Twenty people, you go to a hospital, they look through a small window at you forever. And over that we can’t deal with, you know? Someone’s killed 100,000 people. We’re almost going, “Well done, well done! You killed 100,000 people? You must get up very early in the morning! I can’t even get down the gym.”

On Breyer’s analysis, a single constitutional violation gets more scrutiny than a thousand, which is a curious outcome to say the least.

The third and final question is one on which both sides of this debate can presumably agree: How should the Court treat the pro forma sessions of Congress when calculating a recess? President Obama had been arguing that he could ignore these sessions, but the Court disagreed. As Justice Breyer put it, “the Senate is in session when it says it is.” As long as the Senate has the capacity to take action on an appointment (whether or not it is choosing to take action), it is in session for purposes of the Clause. 

This means the president’s attempted recess appointment of the NLRB commissioners was unconstitutional because the Senate was simply not in recess.

While today’s decision is a stinging loss for the administration, it does leave significant leeway in the president’s hands. Justice Scalia, for one, was frightened by the implications:

The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates.

If there is any president attempting to wield every weapon in his arsenal, it’s this one. The Constitution’s checks and balances may have received a reprieve today, but I imagine they’re still quaking in their boots.

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

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