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Jan. 13 -- Lawyers for the National Labor Relations Board, a Pacific Northwest bottling firm, and Republican senators presented oral argument to the U.S. Supreme Court Jan. 13 in a major test of the president's power to fill federal offices by recess appointments without obtaining Senate confirmation (NLRB v. Noel Canning Div. of Noel Corp., U.S., No. 12-1281, oral argument 1/13/14).
Article II, Section 2 of the U.S. Constitution gives the president the power to “fill up all Vacancies that may happen during the Recess of the Senate,” but the Supreme Court has never before interpreted the provision.
The U.S. Court of Appeals for the District of Columbia Circuit vacated an NLRB unfair labor practice decision against Noel Canning, a division of Noel Corp., finding that President Obama gave two of the three NLRB members who approved the board's order appointments that did not pass muster under the recess appointment provision. The NLRB petitioned for the Supreme Court to review and reverse the appellate court ruling, and the high court agreed to hear the dispute.
Arguing for the NLRB, Solicitor General Donald B. Verrilli told the court that the president properly appointed Democrats Sharon Block and Richard F. Griffin and Republican Terence F. Flynn on Jan. 4, 2012, when the Senate was conducting brief pro forma sessions but was really in a “recess” under the Constitution.
But company lawyer Noel J. Francisco of Jones Day argued the D.C. Circuit correctly decided that Obama lacked the authority to appoint the NLRB members without Senate confirmation during the second session of the 112th Congress. The Senate was not in a recess at the time and did not consider itself in recess, the lawyer said.
Miguel A. Estrada of Gibson, Dunn & Crutcher argued for Minority Leader Mitch McConnell (R-Ky.) and 44 other Republican senators who were granted leave to participate in the case as amici curiae. Estrada asserted that the Senate should be able to decide when it is in a recess, not the president. Estrada called Obama's recess appointments “a complete abuse” of the joint power over appointments that president and Senate share under the Constitution.
Obama made the appointments to fill vacancies on the board that would have left the NLRB without a quorum to decide cases.
Democrat Craig Becker was given a recess appointment as a board member in 2010 after his nomination by the president failed to move forward in the Senate on a cloture vote. Becker's recess appointment was set to expire on Jan. 3, 2012, at the formal end of the first session of the 112th Congress.
The Supreme Court held in New Process Steel LP v. NLRB, 130 S. Ct. 2635, 188 LRRM 2833 (2010) (116 DLR AA-1, 6/18/10), that the authority of the five-seat board cannot be exercised by a panel with fewer than three members.
There were already two vacant seats on the board, so Becker's departure on Jan. 3 left the board with only two members--Chairman Mark Gaston Pearce (D) and then-Member Brian E. Hayes (R)--who lacked authority to decide cases under the reasoning of New Process Steel.
On Jan. 4, Obama announced recess appointments of Democrats Block and Griffin and Republican Flynn to serve on the board (2 DLR AA-1, 1/4/12). Obama had nominated Flynn in January 2011 (03 DLR A-11, 1/5/11), and nominated Block and Griffin on Dec. 15, 2011 (241 DLR A-17, 12/15/11), but the Senate had not acted on any of the nominations.
The Senate had been holding pro forma sessions every three days for weeks before the president's action, and Republicans contended the Senate was not in recess when the appointments were made (4 DLR C-1, 1/6/12). The Justice Department released a memorandum opinion finding that the president was allowed to make such appointments (8 DLR AA-1, 1/12/12).
Noel Canning filed a petition for D.C. Circuit review of a February 2012 unfair labor practice decision that the company violated Section 8(a)(5) of the National Labor Relations Act when it refused to sign a collective bargaining agreement containing terms it had negotiated with International Brotherhood of Teamsters Local 760 (358 N.L.R.B. No. 4, 192 LRRM 1503 (2012)).
A three-judge panel of the D.C. Circuit found that the NLRB order against the company would otherwise have been enforceable, but Judges David B. Sentelle, Karen LeCraft Henderson and Thomas B. Griffith concluded that the president's recess appointments were unconstitutional ( 705 F.3d 490, 194 LRRM 3089 (D.C. Cir. 2013); 17 DLR AA-1, 1/25/13). The board's order against Noel Canning was therefore invalid because it was not approved by a quorum of at least three board members, the court held.
Writing for all three members on the court panel, Sentelle examined the meaning of the phrase “the Recess” and decided that the language of the Constitution refers only to a recess between formal sessions of the Senate.
Constitutional authority to make appointments during “the Recess” does not give a president the right to make “intrasession” appointments, the D.C. Circuit found. The NLRB appointments were made just after the second session of the 112th Congress had begun, so the court reasoned they were intrasession actions that were constitutionally invalid.
Two of the three judges found a second problem with the NLRB appointments. For the president to fill vacancies “that may happen” during an intersession recess, Sentelle and Henderson said, the vacancy has to have arisen or come into being during the intersession recess. That was not the case with the NLRB appointees, the court found.
Griffith did not join in his colleagues' reasoning on the “may happen” language. He said it was not necessary to reach that issue because the president had attempted to make intrasession appointments that were not constitutionally permissible. That was enough to make the appointments “void from their inception,” he said.
The NLRB did not ask for rehearing in the D.C. Circuit but opted to file a petition in the Supreme Court (80 DLR AA-1, 4/25/13). The government asked the court to review the appeals court's reasoning on recesses and on the occurrence of a vacancy.
Noel Canning agreed the case should be heard at the high court. But the company asked the court to consider and resolve a third issue--whether the president's recess appointment power may be exercised when the Senate is convening every three days in pro forma sessions as it was in early 2012. The court agreed to consider the additional issue (121 DLR AA-7, 6/24/13).
Verrilli began the oral argument for the government with a contention that accepting the D.C. Circuit view that intrasession appointments are unconstitutional would call into question thousands of appointments made over the years. But several justices immediately moved on to questions suggesting they were less concerned about such consequences than determining how they should interpret and apply the language of the Constitution.
Justice Antonin Scalia said that even if the court determines that recess appointments were made in violation of the Constitution, the consequence would not necessarily be invalidating all of the actions of thousands of government officials, which might be defensible under the “de facto officer doctrine” or other legal principles.
A more difficult question, Scalia said, is how should the court act if it agrees with the D.C. Circuit that a recess appointment can only be made under the Constitution during an interval between Senate sessions, but finds that there was a long-standing practice that was not consistent with the language of the constitutional provision. The practice should prevail, Verrilli replied, saying “the practice gives meaning to the Constitution.”
Justice Anthony M. Kennedy said the government appeared to be arguing that an intrasession recess could occur during a Senate session when the body was not actually meeting and conducting business, but he said the argument offers only “a principle in search of a limit,” and he asked what limit the solicitor general would suggest.
How brief an interruption of Senate business would allow a president to make recess appointments, the justice asked. Verilli said the constitutional provision that prevents the Senate from adjourning for more than three days without obtaining the consent of the House.
The solicitor general argued that in January 2012 when the president acted on NLRB appointments, the Senate had adopted an order that no business would be conducted from Jan. 3, 2012, when the second session of the 112th Congress started, until Jan. 23. That was a recess, Verrilli said.
Chief Justice John G. Roberts asked if the Senate order had simply said, “It is not anticipated that any business will be conducted,” Verilli would still call the period a recess.
The solicitor general conceded that would be a different and “significantly harder” case for the executive branch, but he attempted to argue the January 2012 interval lacked other “confirming indicia” of a typical recess.
Justice Elena Kagan interjected, “you're not answering the real thrust of the chief justice's question, which is that we could just be back here” in another court session if the Senate in the future adopts a resolution or order with different terms.
“[T]hey'll phrase it differently and we would be back here with the same essential problem, that you're asking us to peg this on a formality that the Senate could easily evade, and that suggests that it really is the Senate's job to determine whether they're in recess or whether they're not,” Kagan said.
In answer to several questions by Justice Stephen G. Breyer, Verilli said the Senate may be entitled to “some deference with respect to requirements that apply only internally to the Congress,” but it would be a different proposition to defer to the Senate's view of its pro forma sessions when doing so would deprive the president of authority he would otherwise have under the Constitution.
Verrilli argued that the power of a president to make recess appointments can be essential to filling an important vacancy when the Senate is out of session and out of town, but Kagan questioned whether the use of recess appointments has changed.
Kagan asked Verrilli whether it wasn't true that “presidents of both parties essentially have used this clause as a way to deal not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the president thinks ought to be approved.”
“You know,” Kagan said, “absence in this day and age--this is not the horse and buggy era anymore. There's no such thing truly as congressional absence anymore. And that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.”
Verrilli said it may be true today, “as a matter of raw power,” that the Senate has the capacity to block presidential nominations by sitting on them for months or years at a time, but he said “that is 100 miles from what the Framers would have expected.”
Justice Samuel A. Alito replied that the solicitor general was making “a very, very aggressive argument in favor of executive power” that has nothing to do with whether the Senate is in session or in a recess.
“You're just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the President must be able to fill those positions. That's what you're arguing. I don't see what that has to do with whether the Senate is in session.”
Verrilli attempted to describe the president's recess appointment power as a “safety valve” to deal with congressional intransigence. But Justice Ruth Bader Ginsburg said the solicitor general seemed to be shifting the government's argument from a position that the Senate wasn't available when Obama made his NLRB appointments to “quite another justification for this.”
The lawyer answered that “perhaps it sounds like this is an aggressive assertion of executive authority,” but the Framers of the Constitution thought it was necessary to “fortify” the president against excessive congressional power by giving the chief executive the recess appointment power.
Representing Noel Canning, Francisco, a partner in Jones Day's Washington office, said the constitutional right of the Senate to advise and consent on presidential nominations is an “important check” on executive power.
On the other hand, the lawyer said, the government's argument in support of the NLRB appointments “would eviscerate that check, creating a unilateral appointment power available for every vacancy at virtually any time with advice and consent to be used only when convenient to the President.”
Ginsburg immediately said Francisco's “argument would destroy the recess clause” and would allow the Senate “to abolish any and all recess appointments.”
Francisco replied that Ginsburg was correct, adding “that reflects the fact that the recess appointment power is a contingent one.”
In a contention he repeated several times during his argument, Francisco said the president's recess appointment power is one that “arises only when the Senate chooses to trigger it by ending its session and beginning its recess.” The Senate “always has the power to prevent recess appointment” by choosing not to trigger the president's power, Francisco argued.
The president is not without resources if he wants to challenge the Senate's refusal to “trigger” his recess appointment power, the lawyer argued. “If the President thinks that the Senate is being derelict in its duties, he can convene an emergency session, and he can force the Senate to consider his nominees. And if they refuse, he can subject them to withering criticism for being derelict in their responsibilities.”
“[T]he one thing that the president may not do is force the Senate to act against its will … and run around the Senate's refusal to act, because that conception of the recess appointments clause is at war with advice and consent itself,” Francisco argued.
He said the Senate's constitutional power to advise and consent on presidential appointments may put the legislative body in conflict with the chief executive not only during Senate breaks, but during regular legislative sessions.
“The Senate could show up every day for an hour, sit at their desks, and announce to the President 'We're not going to do anything, no nominations, legislation, because we don't like what you're doing. And by the way, the only reason we're showing up here at our desks and sitting here for one hour a day is because we don't want you to be able to make recess appointments.' ”
“Nobody would claim that the Senate was in recess during those sessions,” Francisco argued, and he told the court “that is effectively what it was doing here.”
“Here,” Francisco argued, “the structural protections of the Constitution exist to protect the liberty of the people. They were clearly transgressed with these unprecedented appointments, and therefore we believe that the court below should be affirmed.”
Estrada, a partner in Gibson, Dunn & Crutcher's Washington office, made the argument for McConnell and the other Republican senators.
The case before the court “fundamentally is about who gets to decide whether the Senate is in recess,” the Senate or the president, Estrada said. “Our submission today is that the Senate gets to decide whether the Senate is in recess.”
The lawyer told the court that the power for appointments under the Constitution is a joint power. The presidential power to make recess appointments “is a subsidiary power that only arises if the Senate chooses to recess,” Estrada said.
The Constitution requires both the House and Senate to maintain journals of their proceedings. The official record of the Senate reflects that the legislative body was in session when the NLRB appointments were made, Estrada said. Only the Republican members of the Senate joined as amici curiae supporting Noel Canning, but Estrada said the journal reflected that the Senate as a whole had an “official view” that it was in session.
Answering a question by Ginsburg about a president's right to make recess appointments during the interval between Senate sessions, Estrada said there is a “substantial question” that no one had litigated about the transition from the first to the second sessions of the 112th Congress in December 2011 and January 2012.
The Senate did not meet in other than pro forma sessions between Dec. 17, 2011, and Jan. 3, 2012, Estrada said. The president “could have had a better legal argument” that although the Senate had not officially ended the first session, there was “in effect … a sine die adjournment that ended the first session of the Congress.”
The president chose, instead, to delay making the recess appointments until Jan. 4, after the opening of the second session of the Congress--putting the appointments in effect until the end of the first session of the 113th Congress and adding approximately a year to the duration of each recess appointment.
Estrada called it a “complete abuse” of the appointments process for a president to use recess appointments in such a manner to overcome Senate disapproval or resistance to nominations.
“What the Framers contemplated in coming up with a joint power of appointment was you have to act jointly. You have to play nice. And in a country of 300 million people, when the president wants a nominee and the Senate does not agree, it is always possible for the president to come up with another nominee who is even more qualified and acceptable to the Senate. The key here is acceptable to the Senate. He has to be able to proffer someone to the Senate that the Senate is willing to engage in a joint power of appointment for.”
A decision in the case is expected by the end of the court's term in June.
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