Justices voice doubts on Obama recess appointments

Court challenges administration’s interpretation

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.

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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.

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 administration, said presidents 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,” Scalia told 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 US 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 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. Kagan said “it really is the Senate’s job to determine whether they’re in recess.” On this point, she told 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 Verrilli countered that the phrase was at least ambiguous, 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, Ginsburg said, “the intersession recess might be momentary.”