June 26, 2014

Obama’s defeat on recess appointments: half a loaf is better than starving

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

Today’s Supreme Court ruling in National Labor Relations Board v. Noel Canning is a strange “split the baby” decision, bound to disappoint almost any serious scholar, even though it reached the right result on the claims at issue. A unanimous Court voted to invalidate President Obama’s controversial recess appointments of three purported members of the National Labor Relations Board (NLRB) on January 4, 2012, but the Court divided 5-4 on how much deference the President’s expansive and abusive recess appointment practice deserves in other situations.

Justice Breyer, joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan, basically endorse the current executive practice of making recess appointments during inter- and intra-session recesses of ten days or more (a number pulled out of a previously unseen constitutional penumbra), whether the vacancy arose during the purported recess or prior to it. As a former lawyer in DOJ’s Office of Legal Counsel, I advised presidents of different parties on how to take advantage of those expansive opportunities to avoid the Senate’s advice and consent role. I confess error now, despite the Court majority’s approval of those practices today. Justice Scalia’s concurring opinion for the remaining justices thoroughly and convincingly refutes the majority’s reasoning on numerous points necessary to its purported holding, one that was mostly unnecessary to decide today’s case.

The silver lining in today’s decision, however, is that all nine justices agree that the Senate may defeat the President’s recess appointment power by meeting in pro forma sessions about every nine days, so long as the Senate is authorized to conduct business in those sessions under its rules, even if it does not expect to do so. All justices agreed that the pro-forma sessions taking place in early 2012 were valid sessions, rendering the President’s recess appointments on January 4, 2012 invalid.

For a few weeks prior to the unconstitutional appointments, the Senate was meeting in pro forma sessions every three days. The President characterized the Senate’s pro forma sessions as a constitutionally nullity, which is an amazingly egocentric position even for Obama, and for several reasons. One is that the Rules of Proceedings Clause of the Constitution, art. 1, § 5, cl. 2, and simple inter-branch comity dictate that the Senate has the right to “determine the Rules of its Proceedings” for itself, including when it is in session and when it is not. Another is that Obama himself did not treat the pro forma sessions as a nullity the previous year when it served his interests. The Senate passed two bills by unanimous consent during two such pro forma sessions in 2011 that Obama signed into law. Indeed, one significant payroll tax cut extension the President wanted was passed during a brief pro forma session (by unanimous consent) on December 23, about 11 days preceding his illegal recess appointments—during the same period when most senators were at home for the holidays. How can such pro forma sessions be valid for purposes of passing legislation Obama likes but a constitutional nullity when he wants to vastly expand his appointment power at the expense of the Senate’s advice and consent role?

In my view, the Court’s majority should not have reached the broader constitutional issues decided by the DC Circuit, since it could have reached a unanimous opinion on narrower grounds and reserved the broader issue for another day. Perhaps a future Court will characterize those other portions of the majority opinion as dicta. Nevertheless, all justices agreed that the Senate’s pro forma sessions in early January 2012 were sufficient to prevent the president from exercising a recess appointment power. In short, the idea that an imperious president can unilaterally decide whether the Senate is conducting enough business to constitute a real session was soundly rejected. Instead, the NLRB members’ terms and many of the decisions they rendered are the legal nullity.

Although disappointing in other respects, the result today—on balance—bodes well for PLF’s leading case challenging ObamaCare’s individual mandate “tax” as a violation of the Constitution’s Origination Clause because it originated in the Senate. In that case, Sissel v. U.S. Dept. of HHS, the Obama administration argues that it is up to Congress and not the courts to decide whether the congressional rules for originating a tax bill in the House were complied with or not. But the Origination Clause and the Appointments Clause at issue in today’s case have this in common: they are both constitutional procedures the Supreme Court has rightly held cannot be “bargained away” by the political branches in a given instance without harming the individual liberty of the people they were designed to protect. See also my House testimony on the issue. And, naturally, the courts remain open to decide such a question when a proper party with standing seeks relief from an illegal action.

Moreover, the immediate news today is that the Court has at least begun the important process of checking the president’s excessive assertions of power. It is unclear whether today’s decision marks a meaningful rebuke of executive overreaching or whether the President will regard it as an invitation to further test the limits of his power contained in Court majority’s dictum. As the swing justice in many of these cases (although not ObamaCare), Justice Kennedy will likely get to decide. Yet I think today’s decision should at least put wind in the sail of the lawsuit Speaker John Boehner is proposing, and it should. There is nothing to lose and quite a bit to gain from even a split decision on the President’s improper attempts to push the boundaries of executive power.

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