In the fairly likely event that Republicans regain control of the Senate next year, they will suddenly enjoy a power they haven’t held since Senate Democrats invoked the so-called nuclear opinion last November — the power to block every single one of President Obama’s nominees to any Senate-confirmed job. That is, at least, if the Supreme Court gives them this power. On Monday, the justices will hear a case that could effectively shut down the president’s power to make recess appointments, potentially cutting off the primary avenue a president has to push back against a Senate that refuses to confirm anyone to key government jobs.
When the justices announced that they would hear National Labor Relations Board v. Noel Canning, it had the potential to nuke literally three generations worth of protections for workers and unions. The NLRB is the only agency empowered to enforce many of the rights to organize and collectively bargain that workers enjoy in the workplace, and Senate Republicans attempted to effectively shut down this agency by refusing to confirm anyone to it. Thus, if President Obama’s recess appointees to the NLRB were invalidated, the specific question at issue in Noel Canning, America would suddenly find itself without a body of labor law that’s existed since the Roosevelt Administration.
That immediate crisis has passed. In July, Senate Republicans agreed to a confirm a full slate of NLRB nominees in a failed effort to ward of a change to the Senate rules. The larger question of whether President Obama still has a recess appointments power, however, remains a live issue in Noel Canning.
The vibrancy of the recess appointments power had not been an issue until fairly recently. As Attorney General Harry Daugherty wrote in 1921, the question of whether the Senate is in recess — and thus whether the president can make a recess appointment — hinged upon “whether in a practical sense the Senate is in session so that its advice and consent can be obtained.” Daugherty warned about reading hypertechnical requirements into the recess appointments power — “To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”
Until a handful of Republican judges got their hands on the Noel Canning case, the primary argument against Daugherty’s view was that the Senate could effectively defeat the recess appointments power by holding very brief “pro forma” sessions every three days. These pretend sessions, the theory goes, thwart a recess because three days away from business are not enough to constitute a “recess,” and even a very brief, sham session is enough to constitute an act of Senate business.
The problem with this theory, however, is that runs headlong into case law. Even assuming that a sham Senate session convened for the sole purpose of thwarting recess appointments constitutes the Senate doing business in any real sense, the highest judicial authority to consider the question prior to the Obama presidency flatly rejected the notion that a recess is not a recess when it is only a few days long. As the United States Court of Appeals for the Eleventh Circuit explained in Evans v. Stephens, “[t]he Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.”
Faced with this legal precedent, a very conservative panel of the D.C. Circuit offered an entirely different reason to cut of President Obama’s recess appointment power. Under the D.C. Circuit’s opinion in Noel Canning, the only period that counts as a “recess” for purposes of the president’s recess power is the very brief period in between Senate sessions that often lasts for just several minutes every January. If the D.C. Circuit’s rationale is adopted by the Supreme Court, the recess power will effectively cease to exist.
It’s worth noting that the Supreme Court specifically added the question of “whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions” to the list of issues it would consider in this case, so it is somewhat unlikely that the Court will embrace the sweeping rationale that animated the D.C. Circuit. Even so, it may not matter that much how the Supreme Court rules against President Obama so long as they rule against President Obama in this case, since a GOP-controlled Senate will be fully capable of holding pro forma sessions.
While the severely conservative judges who handled the case in the D.C. Circuit claim that their decision is rooted in the “original understanding” of the Constitution, it is hard to read their opinion as anything other than an indictment of the idea that judges should look only to that original understanding without considering anything that has happened since the Constitution was drafted. There have been at least 652 recess appointments since 1981 alone that would be invalidated by the D.C. Circuit’s reasoning — potentially invalidating everything those appointees did in the process. Literally centuries of federal government practice cuts against the D.C. Circuit’s understanding of the Constitution. And yet the thrust of the D.C. Circuit’s opinion is that all of our nation’s historic practice must bow because three unelected judges happen to disagree with everyone who has come before them.
The framers themselves were not so arrogant. Although James Madison led an unsuccessful fight to declare the First Bank of the United States unconstitutional in 1791, he signed into law an act creating the Second Bank after he was elected president. Madison explained that Congress, the President, the Supreme Court, and (most important, by failing to use their amending power) the American people had for two decades accepted” the First Bank, and he viewed this acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”
Nevertheless, if you are expecting the Supreme Court to side with President Obama in this case, don’t. To date, every single Republican judge to consider Obama’s recess appointments has ruled them unconstitutional, while every single Democrat has held them valid — and there are more Republicans on the Supreme Court than Democrats.