This column by ACRU Senior Legal Analyst Ken Klukowski was published on December 5, 2012 on Breitbart.com.
President Barack Obama made headlines months ago when he installed controversial nominees to key government positions, bypassing the U.S. Senate by declaring the Senate in recess so that Senate confirmation was not needed. Today a federal appeals court signaled that it might rule Obama’s move unconstitutional, and remove those officials from power.
The U.S. Constitution says that Congress can by statute allow minor government players–“inferior officers”–to be appointed by the president, by Cabinet officers, or by the courts. But high-level administrative officials–called “principal officers”–must be nominated by the president, then confirmed by the U.S. Senate.
But the Senate isn’t always around; for part of each year, senators are back in their home states. So the Framers of the Constitution included the Recess Appointments Clause, allowing presidents to make temporary appointments during Senate recesses. Such appointments last until the end of the following calendar year, meaning appointments made in January 2012 last through December 2013.
Starting in December 2011, the U.S. Senate officially adjourned for only three days at a time–which the Constitution allows the Senate to do without going into recess–and did so specifically to prevent Obama from using his recess power. Democratic senators did this a few years ago to block George W. Bush from making recess appointments. Although it’s frustrating when the branches block each other, the reality is the Constitution allows it. And besides, this is just the political pushback to presidents using their recess power to get around the Senate in recent years.
But on Jan. 4, 2012, this president did something no president in American history ever attempted. Obama declared that the Senate was actually in recess because there were not enough senators physically present to do regular business, and thus that he had the constitutional power to make appointments unilaterally. He then appointed three members–a controlling majority–of the five-member National Labor Relations Board (NLRB), as well as the first director of the new Consumer Financial Protection Bureau.
Noel Canning is a company going through a labor dispute. After these new appointments, the newly-remade NLRB decided in favor of the Teamsters Union. Noel Canning then petitioned the U.S. Court of Appeals for the D.C. Circuit to review the ruling, arguing in part that these appointments were unconstitutional and thus NLRB lacked any lawful power to issue the ruling against them.
Sen. Mitch McConnell and the other Republican senators whose prerogatives were violated by this end-run around the Constitution retained Supreme Court heavyweight Miguel Estrada–a partner at the powerhouse firm Gibson Dunn–to represent them in the case arguing against the recess appointments.
The courtroom was packed; standing room only. (Which is rare in a federal courthouse, aside from the Supreme Court.) The hour-long argument (most appeals have 20 or 30 minutes, or no oral argument at all) largely centered on whether the president can declare the Senate–a separate branch of government–to be in recess so the president can do something that would otherwise be illegal.
There were several points, all of which seemed to favor the Republican Senators and Noel Canning over Obama and his NLRB.
First, the Constitution says both houses of Congress determine the rules of their own proceedings, and those are beyond the reach of the other branches of government. Under Senate rules, the Senate was still in session.
Second, on Dec. 17, 2011, the Senate had unanimously adopted a resolution saying that the Senate would hold brief sessions presided over by a single senator. So the Senate had declared it was temporarily adjourning for short periods, never going into recess.
Third, the Constitution requires that neither house of Congress can recess or adjourn for more than three days without the consent of the other house. The House of Representatives never passed a resolution allowing the Senate to recess, so as far as the other half of Congress was concerned, the Senate was in session, not in recess.
And fourth, the Constitution’s Twentieth Amendment requires Congress to convene at noon on Jan. 3 every year. The Senate routinely uses these one-person sessions to satisfy that requirement, and no one (including Obama, either as president or previously when he served in the Senate) has ever said the Constitution was being violated by this practice.
Judge Thomas Griffith noted that The Federalist Papers and early legal sources explain the Recess Appointments Clause was meant to be an accommodation for senators. It’s so that the Senate can recess any time it wants to without automatically stopping the installation of government officers, so that senators wouldn’t feel they need to stay in Washington, D.C. It’s designed to give more flexibility to the legislative branch, not the executive branch. As Griffith put it, it doesn’t give any president “two bites at the apple” to install his personal choices for senior government positions.
For all these reasons, it looks likely that the D.C. Circuit will hold Obama’s actions unconstitutional, which would expel those three NLRB commissioners from office and cancel everything NLRB has done in the past year.
But at least two judges on the panel raised points that could make this case even bigger, with profound implications for future presidents. The clause begins: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate ….”
Chief Judge David Sentelle–long a favorite judge of constitutional conservatives–stopped the Justice Department’s lawyer when she asserted the president has power to make appointments during recesses. It says “the recess,” Sentelle corrected her. He then took the conversation to additional early sources, revealing that the original meaning of the clause was that the president could fill vacancies during the recess that takes place after Congress’ entire annual session ends, but before the next one begins on Jan. 3.
The Senate used to only be in session for three or six months a year, leaving a window of several months when the president could use his recess power. But since–whether six months long or six days long–the recess ends on Jan. 3, the president’s Jan. 4 appointments would always be illegal under this original meaning. So would many other recess appointments from the past half-century.
Sentelle also asks the lawyers to explain the meaning of “happen” in the clause. Again, the original meaning was that it only applies to vacancies in Senate-confirmed government posts that occur once the Senate has gone to recess, not to any vacancies that actually began during Congress’ annual session.
In fact, although the Constitution was ratified in 1789, only three recess appointments during a congressional session were ever made before 1945. Since 1945, presidents increasingly used them to appoint nominees who were not getting through the Senate. But the fact that presidents have been doing something for a few decades does not make it constitutional. If it’s unconstitutional, then the courts need to stop it–period–when properly presented in a court case.
So it looks like Obama’s appointees are about to get thrown out. The bigger question is whether the court goes the extra step of defining the original meaning of the clause, which would change how presidents have acted for several decades now.