New York Times

Justices Consider Recess Appointments

January 14, 2014

WASHINGTON — In an extended argument that contained large doses of constitutional history and practical politics, the Supreme Court on Monday seemed skeptical of the Obama administration’s contention that it could bypass the Senate to appoint officials during short breaks in the Senate’s work.

Justices across the ideological spectrum appeared prepared to rein in the ability of presidents to make appointments without obtaining the Senate’s advice and consent by invoking the Constitution’s recess-appointments clause, which says “the president shall have power to fill up all vacancies that may happen during the recess of the Senate.”

Justice Elena Kagan said the clause may be a “historic relic” from “the horse and buggy era,” when presidents needed the authority to fill vacancies because lawmakers were out of town and could not return on short notice. More recently, she said, presidents of both parties have used the appointment power “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.”

She suggested that the new use of the clause was problematic.

Justice Stephen G. Breyer said he had scoured the historical and legal materials. “I can’t find anything,” he said, “that says the purpose of this clause has anything at all to do with political fights between Congress and the president.”

The problem of congressional absence no longer exists, Justice Ruth Bader Ginsburg said. “The Senate — I think to be candid — the Senate is always available,” she said. “They can be called back on very short notice.”

Much of the argument concerned how to reconcile the text of the Constitution with more than a century of tradition.Solicitor General Donald B. Verrilli Jr., representing the Obama administration, said presidents of both parties have made many appointments in breaks during sessions of Congress. He warned the justices not to “repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington.”

Justice Antonin Scalia responded by indicating that the text of the Constitution was more important than contrary practice.

He added that the practical consequences of a ruling against the administration’s position were unlikely to be significant. “You don’t really think we’re going to go back and rip out every decision made,” Justice Scalia told Mr. Verrilli.

The case, National Labor Relations Board v. Noel Canning, No. 12-1281, arose from a labor dispute. The labor board ruled against a bottling company, saying it had engaged in an unfair labor practice by refusing to enter into a collective bargaining agreement.

The company appealed, arguing that the labor board had been powerless to rule because a majority of its members had been appointed during a 20-day stretch when the Senate was convening every three days in pro forma sessions without conducting any business. Since the members of the board were not properly appointed, the company argued, its ruling was void.

The United States Court of Appeals for the District of Columbia Circuit accepted the argument in a sweeping decision.

The appeals court, leaning heavily on the phrase “the recess,” ruled that appointments may be made only during the recesses that occur between the formal, numbered sessions of Congress. The court added that the vacancies must have arisen during that recess.

The Senate recently overhauled its filibuster rules, which had frustrated the Obama administration and prompted its recess appointments. The Senate also confirmed a different slate of nominees to the labor board. But the question of whether the board’s ruling against the company should stand remains alive.

There were three questions before the justices on Monday, and the administration had to prevail on all of them to win. But it ran into significant headwinds on at least two.

The narrowest question was whether the Senate could be said to be in recess when it insisted it was not. Justice Kagan said “it really is the Senate’s job to determine whether they’re in recess.” On this point, she told Mr. Verrilli, “history is entirely on the Senate’s side, not on your side.”

A broader question was whether the vacancy had to have arisen during a recess. Several justices said that was the natural meaning on the phrase “all vacancies that may happen during the recess.”

When Mr. Verrilli countered that the phrase was at least ambiguous, Justice Scalia responded that very few people thought so. “It’s been assumed to be by ambiguous self-interested presidents,” he said.

The third question was whether the appointment had to be made during the recess between formal sessions. Those recesses used to be long. These days, Justice Ginsburg said, “the intersession recess might be momentary.”

Noel J. Francisco, a lawyer for the bottling company, said his client should prevail under all three arguments.

But Justice Ginsburg said that position has far-reaching implications. “Your argument would destroy the recess clause,” she said. “Under your argument, it is totally within the hands of the Senate to abolish any and all recess appointments.”

Mr. Francisco said that was indeed the implication of his position. “The recess appointment power is a contingent one,” he said. “It arises only when the Senate chooses to trigger it by ending its session and beginning its recess. So the Senate always has the power to prevent recess appointments.”

Miguel Estrada, representing Senator Mitch McConnell of Kentucky, the Republican leader, said much the same thing near the end of the unusually long, 95-minute argument.

“There is no power in the Constitution to use the recess-appointments clause to overcome the opposition of the Senate to the president’s nominees,” he said, adding that a ruling sustaining that position would not result in a “parade of horribles.”

“The only thing that will happen,” Mr. Estrada said, “is that the president, heaven help us, will be forced to comply with the advice and consent that the appointments clause actually calls for.”