On Monday, the U.S. Supreme Court heard oral arguments in National Labor Relations Board v. Noel Canning. Their ruling will determine whether the president may bypass the Senate to make recess appointments when the Senate is still in session.
Jonathan Turley, a professor at George Washington University Law School, explains how the Noel Canning case got to the Supreme Court:
“The case stems from Obama’s decision to fill the three NLRB vacancies on Jan. 4, 2012, with Congress on an extended holiday break. At the same time, however, the Senate held brief, pro forma sessions every few days as part of the Republicans’ explicit strategy of keeping Obama from filling vacancies through recess appointments.”
Thankfully, after the oral argument, a consensus emerged among the Supreme Court Justices that seems to infer that Obama’s imperial presidency does have some limits. And hopefully this means that the Supreme Court will decide that the president does not have the power to determine when the Senate is and is not in session.
Below are statements made by justices that show their skepticism of the president’s authority to make recess appointments when the Senate is in a pro forma session.
A post at SCOTUSblog highlights a comment made by Justice Stephen Breyer:
“Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem, not a constitutional problem. Senators of both parties have used the Constitution’s recess appointment provisions to their own advantage in their “political fights,” Breyer said, but noted that he could not find anything in the history of the clause that would “allow the president to overcome Senate resistance” to nominees.”
Justice Elena Kagan drove home Justice Breyer’s assertion. She cited the fact that the modern use of the president’s appointment powers has been expanded by presidents of both parties:
“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? You know, absence in this day and age - this is not the horse and buggy era anymore. There’s no real — there’s no such thing truly as congressional absence anymore. And that makes me wonder whether we’re dealing here with what’s essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.”
As the New York Times reports, Kagan suggests “that the new use of the clause was problematic.”
While the oral argument stage seems to favor reining in executive power, all there is to do now is wait until June when the case will decided.