Supreme Court Accepts Appeal In Recess Appointments Case
The Supreme Court accepts what will likely be one of the most important cases of its upcoming term.
With its current term coming to an end, the Supreme Court has been accepting many of the new cases that will be part of the term that will begin in October 2013, including specifically most of the cases likely to be argued during the first part of that term that lasts from October through December. Today, as widely expected, it accepted for argument a case that deals with the Presidential appointment power, a part of the Constitution that it has never dealt with before:
WASHINGTON — The Supreme Court on Monday agreed to decide whether President Obama violated the Constitution last year when he bypassed the Senate in making three recess appointments to the National Labor Relations Board.
The court will review a January decision from a three-judge panel of a federal appeals court in Washington that ruled against the administration on very broad grounds, calling into question the constitutionality of many recess appointments by presidents of both parties.
The three appeals court judges agreed that presidents may avoid the usual Senate confirmation process only during the recesses between formal sessions of Congress, which generally happen once a year. Two of the judges went further and said that presidents may fill only vacancies that arose during that same recess.
If the Supreme Court agrees on both points, it would markedly narrow the president’s recess appointment power.
In asking for Supreme Court review in the case, National Labor Relations Board v. Noel Canning, No. 12-1281, the administration sought an answer to only the broader questions decided by the appeals court. A decision in the administration’s favor on those points would leave open the more focused question of when appointments are proper during other breaks in the year.
But the Supreme Court, acting on the suggestion of the company that had won before the appeals court, agreed to answer a narrower question, too: whether the president may make recess appointments when the Senate is convening every three days in pro forma sessions. Though it had won in lower court rulings, the company, Noel Canning, did not oppose Supreme Court review.
If Mr. Obama’s appointments to the labor board were not valid, it lacked a quorum to make decisions, including one finding that Noel Canning, a soft drinks bottler, had violated the National Labor Relations Act by refusing to sign a labor contract it was said to have agreed to orally.
As I said, it was largely inevitable that the Court would accept the case for argument. For one thing, this is a case that goes to the core of a part of the Constitution that is causing a conflict among the two other branches of the Federal Governor. For another, the D.C. Circuit Court of Appeals decision, which I wrote about in January, was directly opposed to a ruling on essentially the same issue from the 11th Circuit Court of Appeals from the later years of the Bush Administration. Generally, the existence of a conflict among the Circuits is a prime motivator for the Court to accept a case for review, especially when it involves a potentially important Constitutional issue such as this.
There will be more to say about this case later this year when briefing and oral argument are complete, of course, but I don’t think it is an exaggeration to say that this could potentially be one of the most important Separation Of Powers cases that the Court has had to deal with in quite some time. If the Supreme Court accepts the narrow definition of the scope of the Recess Appointments Power that the D.C. Circuit used in its opinion, then it will essentially mean that this particular Presidential power, which was once widely used when there were gaps of many months between one session of Congress and another, would effectively become a dead letter given that the gaps between individual sessions are now typically very brief (in January, the gap between the adjourning of the 112th Congress and the swearing in of the 113th Congress was less than ten minutes, for example). If, on the other hand, the Court agrees with the assertion that pro forma sessions are not sufficient to meet the Constitutional definition of Congress being “in session,” then opposition parties would be robbed of a powerful tool to prevent Presidents from making controversial, albeit temporary, appointments while Congress is on vacation. Given the fact that the Court has never ruled on this issue before, it’s quite honestly anyone