Senate, presidential powers collide in key case on recess appointments

McClatchy Washington BureauJune 3, 2013 

The U. S. Supreme Court

TISH WELLS — McClatchy

— The Supreme Court is expected to take up a groundbreaking separation-of-powers case later this month that features a constitutional clash between the president’s right to make recess appointments and the Senate’s authority to confirm high-level picks.

All 45 Republican senators are asking the high court to uphold two recent federal appellate decisions that President Barack Obama acted unconstitutionally in naming three people to the National Labor Relations Board in January 2012 when the Senate wasn’t in full recess.

“The president is circumventing the Constitution and its system of checks and balances,” Sen. Jim Risch of Idaho said in a statement last week.

Obama says he followed a long tradition in which presidents going back to George Washington have bypassed the Senate by making judicial and executive branch appointments when it wasn’t in session.

Such actions, called “recess appointments,” have come under scrutiny as presidents sometimes have used the process to name controversial appointees. Beyond constitutional issues, the case reflects the increased polarization in Washington.

Democrats blocked some nominees of President George W. Bush and Republicans have impeded Obama’s choices, refusing to hold votes on them and keeping the Senate open in formal session when lawmakers go home in bids to prevent him from making recess appointments.

When Democrats started using the stay-in-session maneuver against Bush in April 2007, he stopped making recess appointments. He’d made 171 of them during his first six-plus years in office.

Obama resumed the practice of making recess appointments when he took office in January 2009, and while he’s made only 32, he hasn’t stopped. While Democrats control the Senate, both parties must agree to a recess, and Republicans have refused to do so.

“What this case really encapsulates is the breakdown of the American system of government,” said Sanford Levinson, a University of Texas law professor. “The Senate doesn’t play fair, and now Obama doesn’t play fair. The same thing happened during the Bush administration.”

Legal analysts say the Supreme Court probably will accept the case June 20 because federal appeals courts in five circuits across the country have issued contradictory rulings on how much leeway a president has to decide when the Senate is in recess.

The high court probably wouldn’t hear arguments until October at the earliest.

From 1962 to 2004, three circuit courts ruled that Presidents Dwight Eisenhower, Jimmy Carter and George W. Bush had legally exercised their constitutional power to make recess appointments.

Then, in January and again in May of this year, two circuit courts said Obama had overstepped his bounds and impinged on the Senate’s constitutional advise-and-consent power to confirm senior appointments.

“It’s almost inconceivable that they won’t take this case up,” Levinson said of the high court justices. “It has major consequences for the administration of the modern American state.”

At immediate stake are more than 200 actions by the National Labor Relations Board since Obama made his appointments in January 2012.

Already, one of the circuit courts that ruled against Obama has frozen implementation of the agency’s actions pending expected Supreme Court review, and dozens of firms have sued seeking reversals of earlier NLRB rulings against them.

The NLRB decisions included allowing employees to complain about their bosses on Facebook, permitting unions to charge workers for lobbying activities and authorizing unions to speed up workplace organizing elections in the face of mounting internal opposition.

But the case’s impact could be much broader, calling into question the rulings of judges who were recess appointees and the actions of federal agencies that have leaders who took office the same way.

Constitutional scholars are watching the case closely because it pits two branches of governments against each other in a way that few cases do.

It appears to hinge on a linguistic question: What did the Framers mean when they enshrined in Article 2 of the Constitution: “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 End of their next Session.”

In ruling against Obama in January, the U.S. Court of Appeals for the District of Columbia Circuit focused on the article “the” before “Recess” in that clause, interpreting it to mean that the Framers were limiting such appointments to the one formal recess.

Charles Craver, a George Washington University law professor, said the change over the years to a full-time Congress that took weekend and other short breaks made it difficult to know just what the Framers had in mind.

In their time, Congress met for a month or two. Lawmakers held outside jobs and didn’t often make the arduous, long journey between their homes and Washington.

“What did the Framers intend?” Craver said. “It’s hard to know, because 225 years ago they didn’t envision a Congress that meets almost year-round.”

William Gould, a Stanford University law professor, said the NLRB functioned without challenge with two recess appointees of then-President Bill Clinton when Gould chaired it from 1994 to 1998.

“The assumption of the Founding Fathers was that it was necessary to have recess appointments in order to make the executive branch workable,” Gould said. “They did not contemplate allowing the Senate to bring the executive branch to a complete standstill.”

The current case started in February 2012, when Noel Canning, a soda bottling company in Yakima, Wash., sued the NLRB over the federal agency’s ruling that the company had ignored a collective-bargaining agreement with its unionized workers.

Hundreds of firms go to court against the NLRB every year. What made Noel’s lawsuit unusual was its claim that the agency’s action should be voided because some of its five members had been appointed in violation of the Constitution.

In January, the D.C. Circuit Court of Appeals agreed. In a narrow ruling, a panel of three judges, all Republicans, said a president could make recess appointments only during the formal break between each annual session of Congress.

In most years, that would limit such appointments to a period of several weeks between mid-December and the first part of January.

Even more restrictively, the D.C. Circuit Court said the vacancies being filled must themselves have come open during the formal recess.

While the 3rd U.S. Circuit Court of Appeals, based in Philadelphia, issued a similar ruling in May, the D.C. Circuit Court’s decision is on appeal to the Supreme Court because it came first and because most federal agencies fall within its jurisdiction, with their headquarters in Washington.

Email:; Twitter: @jamesmartinrose

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