High Court Curbs Power Presidents Have Used Throughout Nation’s History

Central to the Supreme Court’s ruling that President Obama acted unconstitutionally when he filled three empty seats on the National Labor Relations Board (NLRB) during a Senate recess is the justices’ contention that the Senate was not in recess. The Court thus gave its blessing to the practice in the Senate of an opposition party conducting sham sessions for the sole purpose of blocking a president from making recess appointments.

The Senate is seldom at work — Christmas runs from well before until deep into January, Easter lasts two weeks, every one-day holiday is stretched to a week, they are gone all of August (when are they not in recess one might ask after watching this spoof). But during these breaks the opposition party in the Senate can’t risk leaving the door open to the president to make recess appointments. To thwart Obama, Republicans adopted a ruse devised by Democrats during the George W. Bush years — the subterfuge of keeping the Senate open by volunteering a single senator to show up in the empty chamber every three days to gavel into being a “pro forma” session. Three days because “Neither House…shall, without the Consent of the other, adjourn for more than three days”, says the Constitution. These sessions, adjourned immediately, last as little as the one on January 6, 2012, about when Obama made the disallowed NLRB appointments. On that day the Senate “met” for 29 seconds.

Nevertheless, the justices held 9 to 0 that the Senate “may determine the Rules of its Proceedings”, as the Constitution says, even when the proceedings are a sham. “The Senate is in session when it says that it is”, reads the Syllabus of the Court’s decision. “It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business”. In the January hearing of this case, Justice Elena Kagan imagined a scene in which the solitary sole with the gavel ”got up and asked for unanimous consent to name a post office”. As he or she would constitute unanimity, “the post office is named”, she said. That exemplifies the Court’s criterion of the Senate’s ability to conduct business. Yet both then and in their final decision the justices contradict another rule in the Constitution that says for both Senate and House “a Majority of each shall constitute a Quorum to do Business”. The Court’s decision that the Senate is not in recess during the every third day mock sessions is thus based on a false premise.

Hundreds of presidential appointments — too many, it is argued — require Senate approval. In the past, approval has generally been forthcoming on the principle that the President should have the right to make his own choices. But not today, in our era of absolute partisanship. To block appointments the filibuster has been deployed repeatedly to halt even the consideration of appointees, in this case by Republicans to keep NLRB seats empty so that the board lacked the quorum needed to make any of its traditionally pro-labor rulings. After over a year of inaction, Obama in January 2012 had had enough and acted — so he thought — with the authority granted him by the Constitution. Throughout the nation’s history, literally beginning with George Washington, presidents have made recess appointments. In recent times Bill Clinton made 139 such appointments, George W. Bush made 171. Far from abusing the power, Barack Obama had made only 32. Reagan made eight times that number. Yet for Obama it was “abuse of power”, said the Wall Street Journal’s editorial.

A challenge to presidents using the recess appointments clause has never come before the Supreme Court until this case, NLRB v. Noel Canning, brought by a soft drink bottler in the state of Washington that objected to an NLRB ruling that said it had violated labor laws by refusing collective bargaining.

The 9-0 ruling referred to the Senate’s right to say when it is in session, but dissension over the wording of the recess appointment clause led to a 5-4 split in other rulings. The D.C. appeals court decision that was challenged by the government had given the clause so narrow a reading as to reduce presidential power to the vanishing point — a reading that found agreement from the four most conservative judges. The appeals court focused on “the Recess” (see sidebar) as meaning the single intersession recess and not the many breaks the Senate takes during a year. That’s a definition that even the Senate disagrees with on its own web page.

Then came the question of whether “may happen” refers only to vacancies that come about while the Senate is in recess? Or does “may happen” refer to all vacancies that may happen, including those accumulated from before a Senate recess? Here again the appeals court applied the most strict reading — that the phrase referred only to vacancies that occurred during what were then the long recesses caused by horse-drawn travel in the nation’s early days that is no longer applicable. The four conservatives on the Supreme Court bench agreed with the lower court.

Combining those interpretations says that the Senate can ignore appointments interminably, with the president left powerless to act on any vacancy that occurred except fortuitously during the intersession recess, unless a president somehow engineer vacancies to occur only then, invoking the Almighty’s assistance that death not choose a more capricious time.

The majority in the 5-4 split would have none of it. Rather, the majority opinion written by Justice Stephen Breyer allows the president to make recess appointments in Senate breaks of ten days or greater. But that would be negated by the continuance of the bogus pro forma sessions that the Court says qualify as keeping the Senate perpetually in session.

The ten day rule had Justice Antonin Scalia in sulfurous objection. “The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” Justice Scalia said from the bench. Scalia is a strict “originalist”, adhering to the exact words in the Constitution. “These new rules have no basis whatsoever in the Constitution,” he said from the bench. “They are just made up.”

True enough. But the intent of the Constitution’s authors was to bestow on the president the ability to fill vacancies to keep the government running, and the cramped reading of the clause effectively crosses out the text that “textualists” such as Scalia and Thomas revere above all other approaches to the document.