The New York Times headline for today’s devastation of President Obama’s unlawful recess appointments announced, “Supreme Court Curbs President’s Power to Make Recess Appointments.” No, they didn’t. The decision in the NLRB vs. Noel Canning case didn’t take any powers away from the Presidency. It affirmed that Obama’s recess appointments were illegal all along… precisely as Obama’s critics said, and as virtually no one in the media believed.
It’s been a while since all this happened, so it’s hard to understate just how absolutely and totally wrong President Obama and his apologists were, on a virtually unanimous basis. They thought the congressional practice of keeping the clock running through pro forma sessions had become some kind of Republican obstructionist scam (an opinion they did not, of course, hold under Republican presidents with Democrat legislatures.) A unanimous Court set the record straight – not by changing anything, but by reaffirming and clarifying what the Constitution said all along:
The Supreme Court on Thursday dealt a significant blow to executive power, cutting back on the president???s power to issue recess appointments during brief breaks in the Senate???s work.
The court ruled unanimously that President Obama had violated the Constitution in 2012 by appointing officials to the National Labor Relations Board during a short break in the Senate???s work when the chamber was convening every three days in pro forma sessions. Those breaks were too short, Justice Stephen G. Breyer wrote in a majority opinion joined by the court???s four more liberal members.
But Justice Breyer added that recess appointments remain permissible so long as they are made during a break of 10 or more days. Experts debated the practical impact of that new limit, with many saying it will block most appointments.
That’s a big win for the rule of law, but it wasn’t a total rout for fans of the strong-executive model:
Still, Mr. Obama and the presidents who will succeed him avoided a far broader loss, one that could have limited recess appointments to breaks between Congress???s formal annual sessions and even then to vacancies that arose during those breaks. That was the approach embraced by the court???s four more conservative members.
Justice Antonin Scalia wrote the concurrence and issued a caustic statement from the bench. ???The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president???s arsenal,??? he said.
If you want high-quality caustic statements, Justice Scalia is your guy. He can rip you to shreds when he’s concurring with your decision. The L.A. Times has another solid point from his opinion, an entirely sensible reminder of what “recess appointments” are supposed to be for – coming, of course, from the old days, when it would have been difficult and time-consuming to haul Congress back from recess. The political stakes for such appointments also probably didn’t seem quite so high in a time when the federal government and its executive-branch agencies were far less huge and powerful than they are today.
???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,??? Scalia wrote.
???To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best.???
Presidents of both parties have long abused recess appointments as a weapon… which is basically why Justice Steven Breyer said the Court shouldn’t put a stop to it, saying the broader, weaponized version of the appointment power “is reinforced by centuries of history, which we are hesitant to disturb.” Too bad the people who made that history weren’t more hesitant to disturb what came before them. Two wrongs don’t make a right, but a few hundred bipartisan wrongs make a precedent.
Justice Scalia on the “let’s not disturb centuries of history” argument, trenchant as always: “I can conceive of no sane constitutional theory under which this evidence of ‘historical practice’ – which is actually evidence of a long-simmering inter-branch conflict – would require us to defer to the views of the Executive Branch.” He noted that there have only been about a hundred appointments made under the broader interpretation of the appointment power, the vast majority of them coming after 1940.
(Okay, one more bit of Scalia, because this is too good not to share: “What the majority needs to sustain its judgment is an ambiguous text and a clear historical practice. What it has is a clear text and an at-best-ambiguous historical practice.”)
We might also mournfully remark that this whole recess-appointment flap serves as one more reminder that politicians of both parties are reluctant to absolutely restrict powers they hope to use someday themselves. If they’re being abused, and their logistical rationale has long since passed… and if, as the 10-day limit put forth by Breyer suggests, it’s fairly easy for Congress to keep them almost entirely off the table anyway… then get rid of them. Or, if they’re a vital function of the Republic that should never to subject to partisan obstruction by the fractious legislature, expand them. But instead, it’s all kept in limbo, so everyone can fight about it some more.
Not to be snarky, but I also wonder at the urgency of recess-appointing all these high officials who promptly claim they have no idea what’s going on in their agencies and can’t be held responsible for anything that goes wrong. Okay, maybe that was meant to be a little snarky. Reading Scalia opinions has that effect on me.
Judging by the 5-4 split decision, there wasn’t really a lot of “curbing” going on. But the thing Obama’s critics made such a big deal about turned out to be a big deal indeed. However, as the New York Times notes, “the immediate practical significance of Thursday???s decision was undercut by the Senate???s recent overhaul of its filibuster rules and by the Senate???s confirmation of a different slate of nominees to the labor board. Republican filibusters had frustrated the Obama administration and prompted its recess appointments.”
So the recess-appointment issue is somewhat less important today, because Democrats opportunistically nuked the opposing party’s ability to block nominations. Don’t worry, they’ll bring it back the day after a Democrat Congress finds itself facing a Republican President, and the same media that cheered the “nuclear option” will solemnly declare that it has outlived its usefulness, so it’s clearly time for the filibuster to make a comeback.
As for the immediate effect upon the Noel Canning company (which got this case rolling toward the Supreme Court when Obama’s illegal appointees to the National Labor Relations Board ruled against it, during a collective-bargaining dispute) and others, I gather from early reactions that it’s now possible to appeal those rulings, and the appeals are likely to succeed, but they’re not all instantly voided. Noel Canning already won a judgment from the D.C. Circuit Court of Appeals, but today’s Supreme Court decision mentions a number of other pending cases.
An interesting parting thought about another famed example of a recess appointee, from Will Baude at the Washington Post’s Volokh Conspiracy blog, who participated in an amicus brief on the NLRB v. Noel Canning case:
The majority appears to leave open ???the separate question of whether new offices are vacancies within the meaning of the Clause.??? In other words, when Congress first creates an office that requires Senate confirmation, can the first person ever to hold that office be a recess appointee? In a well-researched student note in the NYU Law Review, Amelia Frenkel argues not: the word ???vacancy??? presupposes a previous occupation. I believe that issue would have been raised in the case of Richard Cordray, had the challenge been made during his recess appointment. It may still be made in the future.