Just when you thought Washington couldn’t become more dysfunctional, enter the Supreme Court.
On Thursday, the nine justices of the court unanimously limited the president’s power to make temporary recess appointments when the Senate is not in session. Sure, it’s a wonky subject from a little-known corner of the Constitution, but the result is likely to be more partisan gridlock and a substantial blow to the power of the presidency.
If Democrats lose control of the Senate after the November midterm elections, Republicans could now block every one of Barack Obama’s appointments, from Cabinet members to federal judges, in 2015 and 2016.
It’s not hard to imagine a future constitutional crisis as the presidential and judicial branches go to war over appointments.
Since George Washington, presidents have used the recess appointment power to seat judges and fill important executive branch posts. The power is viewed skeptically, as it allows the president to circumvent, at least temporarily, the Senate’s role to provide “advice and consent.” But it has often been a power for good. Some of the first women, black and Jewish federal judges were recess appointments, which allowed presidents to sidestep prejudiced lawmakers. In 1961, when a group of Southern Senators tried to stop President John F. Kennedy from appointing civil rights icon Thurgood Marshall to the 2nd U.S. Circuit Court of Appeals, Kennedy used his recess appointment power.
It’s a power both parties use. After a Democratic filibuster, President George W. Bush controversially used a 10-day recess to appoint a fellow conservative, William Pryor, to the 11th U.S. Circuit Court of Appeals. Ten days just so happens to be the limit the Supreme Court used to define a recess in Thursday’s decision.
Now it might be time to kiss recess appointments goodbye. While the Supreme Court technically preserved the power, it made it impossible for any president whose party does not control both houses of Congress to make such appointments.
The current fight over the appointments started when Republicans refused to confirm any of Obama’s appointments to the National Labor Relations Board (NLRB), the government agency that resolves labor disputes, because Republicans felt the agency too often sided with unions over employers. Without a quorum on the five-member board, the NLRB cannot function, so Republicans’ refusal to confirm any members would de facto dissolve the agency. So in January 2012, Obama used his recess appointment power to appoint three members.
The problem is that while the Senate was in recess for all intents and purposes, every three days a senator would gavel in for a few seconds, which meant that technically the Senate was in a “pro forma” session. The entire point was to block recess appointments. But that January Obama appointed the three new members anyway.
The following month, when a Washington bottling company called Noel Canning didn’t like how the NLRB had decided a labor dispute, it appealed the ruling, claiming the NLRB did not have the authority to issue an opinion because a majority of its members were unconstitutionally appointed. The Court of Appeals for the D.C. circuit agreed, holding that the recess appointments clause in Article II of the Constitution only allowed the president to make recess appointments between sessions of Congress (inter-sessions recesses versus intra-session recesses), and he could fill only posts that became vacant during that same recess.
On Thursday, the Supreme Court held in National Labor Relations Board v. Noel Canning that that pro forma sessions convening every three days are not a recess and that Obama’s NLRB appointments were unconstitutional. Going further, the court decided that a break of less than 10 days is now presumptively not a recess.
The majority opinion, written by Justice Stephen Breyer, rejected the D.C. circuit court’s much more restrictive view of recess appointments, preserving the right to make recess appointments outside of pro forma sessions. (A concurring opinion signed by the four most conservative justices found the recess power to be much narrower, like the D.C. circuit court.) But in reality, the Supreme Court set up a situation in which Congress can simply choose to never recess, using pro forma sessions to block any appointments.
The confirmation battles are also no longer simply between the president and the Senate. Because the House of Representatives must give its consent for the Senate to recess—a constitutional stipulation rooted in the difficulties of 18th century travel—the House now has the ability to block recess appointments by preventing a recess.
“The recess appointment in theory is affirmed today,” said Victor K. Williams, a professor at the Catholic University of America Columbus School of Law who filed an amicus brief in support of the NLRB. “In practice, [Republican House Speaker John Boehner...has been granted veto power over recess appointments.”
Williams added, “The Framers are rolling in their graves,” because they never intended the House to be involved in the appointments process. Alexander Hamilton, for example, wrote in the Federalist Papers that the House should have no role in that process, to avoid “infinite delays and embarrassments.”
In the short term, and of most significance to Obama, is the finding that appointments cannot be made during a pro forma session. If Democrats lose their Senate majority in November, Republicans could effectively block all his nominations and deny him any opportunity to make recess appointments.
Down the line, it’s not inconceivable that this ruling could set up a constitutional crisis in which a president is kept from making appointments because either house of Congress is controlled by the other party. Could Republicans, for example, really render an agency like the NLRB effectively dead by blocking any appointments? What will happen in 2018 when the five-year terms of the current members expire?
A future president could, in theory, adjourn Congress in order to create a recess—a power the president has but one that no president has ever used. “Maybe what the court has done here is set up the mother of all constitutional problems,” Williams said.
The opinion is vague enough that lawyers are still trying to figure out when a recess appointment might be possible. Legal scholars have begun to dig into what may be a loophole in the court’s ruling, which reads, “The Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.”
Could a senator use a quorum call during a pro forma session to prove that there in fact is not a quorum and trigger a real recess? Or could enough senators return to Washington in a few hours, meaning they still have the “capacity” to act? If senators begin to question the legitimacy of the pro forma session, that could trigger a constitutional crisis also.
Of course, not everyone sees the potential for more gridlock and power battles in Washington as a bad thing. The legal community that supported Noel Canning—and included most Senate Republicans—reasoned that the Founders never intended the recess appointment clause to be a loophole whereby the president could get around the Senate. Instead, the clause was a reflection of the fact that the president might, in an emergency, need to fill a vacancy, and that, unlike today, it took senators more than a few hours to get to Washington in 1789.
"The recess appointments clause was written to address a particular sort of emergency: a situation in which a crucial senior office is suddenly vacant and the Senate is out of town and literally unavailable to provide its usual advice and consent," said Nicholas Quinn Rosenkranz, a constitutional expert at the Georgetown University Law Center who joined an amicus brief supporting a limited view of the recess appointment power. "[I]t was never intended to enable the President to circumvent the Senate simply because he doesn’t like its advice or fails to win its consent."
If the decision brings more gridlock, so be it, the argument goes. That’s just how the Founders intended it.