The first headlines make it seem like the Supreme Court dealt a big blow to overreaching of executive authority by President Barack Obama in its ruling today in NLRB v. Noel Canning striking down three recess appointments he made to the National Labor Relations Board. As is often the case with court decisions, the devil is in the detail. Yes, the Supreme Court unanimously agreed that President Obama went too far when he used the Recess Appointments Clause in the Constitution to appoint three members to the NLRB during a 3-day break in the Senate's pro forma sessions during the Christmas holiday break. Members of the Court, however, divided sharply on what constitutes a "recess" within the meaning of the Constitution, with Justice Kennedy joining the four liberal members of the Court in defining the term very broadly. As Justice Scalia's scathing concurring opinion concludes, the definition provided by the majority in Justice Breyer's opinion is nothing more than judge-made law replacing the original intent behind the Recess Appointments Clause. In short, the Court left a lot of wiggle room for the president to skirt the Senate confirmation process.
When Congress first began meeting after the adoption of the U.S. Constitution, a "recess" meant the long break between two separate formal sessions conducted during a two-year time period when Congress still acted as a part-time legislative body. That's the definition Justice Scalia urged, the same one followed by our first two presidents, George Washington and John Adams, for making recess appoints without Senate confirmation. Instead, the majority adopted a more expansive definition that successive presidents over time have further broadened to expand their own power, that includes both inter-session (breaks between formal sessions) and intra-session (breaks in the midst of formal session) recesses. The majority takes the view that the broader definition is required by necessity to ensure the continued functioning of the government while the Senate is not in session. But that definition covers recesses as short as three days. So the majority has crafted a judge-made rule that says that a recess as short as three days but not longer than ten days is presumptively too short to qualify as a "recess" within the meaning of the Constitution. The word "presumptively", of course, leaves the door open for the president to argue that extenuating circumstances required an appointment be made during that shorter time period.
To ameliorate the impact of its broad interpretation, the majority said that it will accept the Senate's definition of when it has the capacity to transact business. So the practice of the Senate adjourning but allowing pro forma business to be transacted during such periods of adjournment without the members actually being present can serve to narrow the number of "recess" periods the president can utilize to make appointments without Senate confirmation. Because in this case President Obama made his three appointments to the NLRB during a 3-day recess during which the Senate was in session for pro forma sessions, his appointments made without the Senate's consent violated the Constitution.
Justice Scalia's minority opinion emphasized the importance of reading the Recess Appointments Clause so as not to nullify the Senate's role in the Senate confirmation process as has occurred repeatedly over a long period of time during our country's history and undermine the important separation of powers doctrine incorporated into our constitution. Scalia narrowly interprets the Clause to mean that: (1) it only applies during a recess between two formal sessions of the Senate (i.e., inter-session); and (2) it may only be exercised to fill vacancies that arise during the recess.
Scalia castigated the majority for reaching an "atextual result" that allows the president to make appointments without Senate confirmation during short breaks in the middle of a formal session based on what he describes as an "adverse possession theory of executive power." "To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best," Scalia wrote. "The majority’s insistence on deferring to the Executive’s untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court’s role in controversies involving the separation of powers and the structure of government." Scalia predicts that the failure of the Court to "affirm the primacy of the Constitution's enduring principles" will allow an overreach of executive power "in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers."
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