Attorney Joe B Garza Explains Recess Appointments
On January 4, 2012, President Obama appointed three new members to the five-member National Labor Relations Board (NLRB), the federal agency that investigates unfair labor practices. He also appointed a head of the Consumer Financial Protection Agency. All four appointments were “recess appointments,” a type of appointment made while the Senate is not in session. Such appointments do not immediately require the consent of the Senate, but they are only temporary. The “recess appointments clause” of the Constitution provides: “The President shall have 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.”
Some Republicans and legal commentators predicted a constitutional battle over the appointments on the ground that the Senate was in session. In early January of 2012, the Senate was convening every three days in pro forma sessions, which are brief sessions held every three days in which no official business is conducted. Pro forma sessions typically are held to prevent a breach of the constitutional requirement that each House of Congress obtain the other’s permission for recesses beyond three days. The President and his legal advisors, however, viewed pro forma sessions by the Senate as the equivalent of the Senate being in “full” recess, in the same way that Congress goes into recess every August.
Noel Canning (“Noel”), a soft drink bottling company, raised the constitutional objection in its litigation with the Teamsters Union and the NLRB. The company claimed that the three January 2012 appointments to the NLRB were unconstitutional, and that as a result the NLRB was operating without its required three-member quorum (the other two spots on the NLRB are currently vacant). Noel prevailed in the Court of Appeals for the District of Columbia Circuit. The Supreme Court agreed to hear NLRB’s appeal and will address three questions in its ruling. First, can the President make a recess appointment during a break in a single session, as opposed to a break between two enumerated sessions (i.e., the August recess)? Second, if so, is a pro forma session of Congress such a break? Third, can a recess appointment be made only for vacancies that arose during that recess, or also for vacancies that existed prior to the recess?
The Supreme Court’s ruling will be eagerly anticipated for at least two reasons. First, little case law exists on the recess appointments clause; up until January 2012, tradition was the guide for when recess appointments may be made. Second, as the confirmation process of presidential appointees becomes more politicized, the recess appointments clause will (perhaps already has) become the presidential counter to circumvent a Senate opposed to his nominee.
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