President Obama overstepped his power when he named three people to the National Labor Relations Board at the end of 2011, the Supreme Court decided unanimously on Thursday.
Here’s the background: since 2009, Senate Republicans undertook routine obstruction of President Obama’s appointments by wielding a filibuster that required sixty votes to break. They did this against all sorts of nominees, for offices big and small; in some cases, Republicans didn’t even bother to claim a substantive problem with the nominee. The only criteria for a filibuster, at times, seemed to be that Obama nominated that person.
One area where this was extremely problematic was the National Labor Relations Board—three members had their five-year terms expire in 2012, and Senate Republicans filibustered Obama’s replacements. With three empty seats, the NLRB would not have a quorum to function, and the practical effect would be that US labor law would no longer be enforced. (It’s not hard to see this as the GOP’s goal here).
The White House didn’t want this to happen, and Obama contemplated and ultimately made “recess appointments” to the three seats.
The law around presidential appointments during recess has historically been vague. Article II, section 2, clause three of the Constitution grants the president “power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” That was a sensible clause for an era when it could take weeks for Congress to return to Washington via horse and buggy—if the war secretary died of tuberculosis, it would not be practical to wait that long to confirm a replacement.
In the modern era, how should that clause be interpreted? Presidents began making recess appointments when the Senate gaveled out of session, even for a few days, which was clearly within the letter of the law, though probably not the original spirit. That was legally fine—even three Supreme Court members were appointed in that fashion.
In the aughts, to prevent President Bush from placing un-confirmable nominees into office when the Senate broke for recess, Senator Harry Reid devised a strategy to hold “pro forma” sessions every three days. This consisted of a senator coming to the floor when everyone else was out of town, gaveling the Senate into session, and then right back out. As a technical matter, the Senate was always in session, and the president could not make recess appointments.
Republicans later adopted this strategy, but Obama—bolstered by a lower-court ruling that those pro forma sessions were not legitimate—decided in late 2011 to issue three recess appointments to the NLRB to keep it functioning in late 2011 in the midst of some pro-forma sessions. This is what is at issue in Thursday’s case, NLRB v. Canning.
The administration urged the justices to look at the practical matter here: the Senate was not really in session in any true sense, and the pro-forma sessions every three days were an obvious ploy by Republicans to prevent recess appointments.