The United States Supreme Court ruled, Thursday, regarding President Obama’s January 2012 “recess appointments” of three of five members of the National Labor Relations Board, that the President “lacked the authority” to do so.
In the face of Senate Republicans’ blocking many of his appointments of federal judges and agency officials, Obama had resorted to the Presidential technique of making appointments while the Senate had adjourned for a long weekend, on the theory that their having vacated Washington triggered the recess appointments provision of the Constitution. That provision requires no Senate confirmation, because the appointment lasts only ’til the end of the current annual Session of Congress. The Senate had, however, the previous December, held pro forma sessions of a few members on Tuesdays and Fridays while the rest went back home — underlining that the Senate was not in recess, but still in session.
But Obama declared that he knew when the Senate was in session and when it was not, and made his appointments accordingly, including the three NLRB Board members.
[The Constitution, to the contrary, states that “each House may determine the rules of its proceedings”—i.e., not subject to the Executive branch.]
A company called Noel Canning challenged in the D.C. Circuit of U.S. Court of Appeals, rulings the NLRB had made against it. The company asserted that a quorum of the NLRB members had not been present to vote—because three of the five seats were legally vacant, having been made by President Obama in the several days between pro forma sessions. The D.C. Circuit ruled against the validity of the NLRB’s rulings against Noel Canning. NLRB appealed to the Supreme Court, which similarly ruled against the agency Thursday, but for slightly different reasons. A long summary of the case by the Court’s Clerk (“Syllabus”), stated that the issue was that
“The Founders intended the norm to be the method of appointment in Article II, §2, cl. 2, which requires Senate approval of Presidential nominations, at least for principal officers. The Recess Appointments Clause reflects the tension between the President’s continuous need for ‘the assistance of subordinates,’ [case citation omitted — ed.], and the Senate’s early practice of meeting for a single brief session each year. The Clause should be interpreted as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confirmation.”
After an historical examination of the how the Recess Appointments Clause has been utilized and understood by the Executive and Legislative branches during the history of the Republic (lest a new ruling dismember long-held understandings developed between the branches during that history), the Syllabus reported that the Court found that “For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is….”
The Syllabus stated in conclusion, that the Court had ruled that “Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.” The actual majority-opinion of the Court (issued by Justice Breyer, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan) said more emphatically, that “… we conclude that the Recess Appointments Clause does not give the President the constitutional authority to make the appointments here at issue.”
Justice Scalia filed a concurring opinion (agreeing about which party won, but for the reasons which had been given by the Court of Appeals), joined by Justices Roberts, Thomas, and Alito.