While the rulings in Fisher and Windsor justifiably garnered the most attention this week, it is important to note an important but little discussed decision to accept a case. 
I have previously testified and written about President Barack Obama’s use of recess appointments, which I viewed as flagrantly unconstitutional. Recently, the D.C. Circuit agreed with that view and found that the Obama Administration had violated the recess appointment powers. Then a second appellate court has joined that view, the United States Court of Appeals for the Third Circuit. I have two law review articles coming out on these appointments and more broadly the abuse of recess appointment powers in modern presidencies. See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review ___ (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review ___ (2013). The case accepted for review is Noel Canning v. NLRB, No. 12-1115 (D.C. Cir. 2013).
A year ago, I testified in Congress that the recess appointments of President Barack Obama were unconstitutional. Those four appointments by President Obama included Richard Cordray, who had been denied confirmation to a consumer protection board in a Republican filibuster. While I liked Cordray, I testified that the appointments were in my opinion clearly unconstitutional. The D.C. Circuit has now agreed with that view and the panel unanimously ruled that Obama violated the Constitution with his circumvention of Congress.
In my prior testimony, I discussed how Obama — and by extension the Office of Legal Counsel — violated both the text and the purpose of the recess appointments clause. It was an interesting hearing with other experts testifying that the appointments were constitutional — supported by the January 6, 2012 opinion of Assistant Attorney General Virginia Seitz and the Office of Legal Counsel (OLC). I was very critical of that opinion.
Throughout history, the interpretation of this Recess Appointments Clause has evolved to the increasing benefit of the Executive Branch – allowing the Clause to be used to circumvent congressional opposition. Indeed, the debate today is generally confined to the question of what technically constitutes a “recess” for the purposes of the Clause, treating as settled the question of whether the Clause can be used to fill a position that the Senate has chosen to leave vacant. In my view, the Clause is now routinely used not only for an unintended purpose but a purpose that is inimical to core values in our constitutional system. I have long favored the original interpretation of the Clause: that it applies only to vacancies occurring during a recess. This interpretation is truer to the Constitution and would avoid many of the controversies of modern times. I readily admit that I am in the minority on that view, but I discuss the original and later interpretations to demonstrate how far we have moved from the plain meaning of the Clause. Frankly, I believe that our system would be far better off under the original meaning of the Clause, which would have avoided many of the controversies of modern times.
In a 2-1 panel decision, the Third Circuit is different in some respects from the earlier D.C. Circuit opinion in Noel Canning v. NLRB. It was narrower in rejecting “intrasession” appointments — recesses during a given session of Congress. However, it did not address pre-existing recesses or contain the broader historical analysis of the D.C. Circuit. It also rejects the clarity in the language of the Clause: “In short, the natural meaning of recess does not help us decide between intersession breaks and intrasession breaks of a fixed duration, but the relevant context does undermine the Board‘s current position.”
The opinion was written by Judge D. Brooks Smith and the dissent came from Judge Joseph. A Greenaway Jr. Greenaway objects that “The Majority attempts to displace the absurdity of its holding by showing that my standard also yields absurd results.”
He adds:
An empty office is an empty office. It makes no sense that the Framers would have differentiated between intrasession and intersession recesses in effectuating the purpose of the Recess Appointments Clause. See Evans, 387 F.3d at 1226 (“The purpose of the Clause is no less satisfied during an intrasession recess than during a recess of potentially even shorter duration that comes as an intersession break.”). The atrophy of agencies and other offices caused by the Senate‟s absence did not then, and does not now, depend on whether the Senate is unavailable due to an intersession recess or intrasession recess — all that matters is the length of time that the Senate is away from its usual business, unable to provide advice and consent, while vacancies persist.
Both opinions are worthy of reading and present compelling arguments, though I obviously agree with the majority. My own analysis goes further than both the D.C. Circuit and the Third Circuit.
The Supreme Court stepped into an important constitutional dispute Monday between President Obama and congressional Republicans over the chief executive’s power to make recess appointments.
The justices said they will review a federal appeals court ruling that found Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board.
The high court case is the latest chapter in the partisan political wrangling between GOP lawmakers and Obama over appointments to the labor board and the Consumer Financial Protection Bureau. Republicans want to rein in both agencies’ powers.
The Constitution gives the president the power to make temporary appointments to fill positions that otherwise require confirmation by the Senate, but only when the Senate is in recess.
At issue for the Supreme Court: What constitutes a congressional recess and does it matter when a vacancy occurs?
George Washington was the first president to make a recess appointment and Obama’s predecessors back to Ronald Reagan made significantly more such appointments than has Obama. On three earlier occasions, federal appeals courts upheld the appointments.
But the nature of the president’s actions, during brief Senate breaks that Congress explicitly said were not formal recesses, is driving the current legal controversy.
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. The president also used a recess appointment to install Richard Cordray as head of the financial protection agency, which the GOP had blocked for a year and a half.
Businesses and trade groups quickly went to court to challenge decisions made by the NLRB. Noel Canning, a Washington state bottling company, claimed an NLRB decision against it was not valid because the board members were not properly appointed and that the board did not have enough members to do business without the improperly appointed officials.
In January, the U.S. Court of Appeals for the D.C. Circuit agreed in a sweeping ruling. A panel composed of three Republican appointees said that the only congressional break that counts as a recess is the one that occurs between formal year-long sessions of Congress. Two of the three judges also said that only positions that come open during a congressional recess can be filled through a recess appointment. The court did not address the issue of how short a break can count as a recess.
If it stands, the ruling could invalidate hundreds of board decisions, and call into question the legitimacy of regulations issued by the Consumer Financial Protection Bureau, many of which affect the mortgage industry.
The NLRB also would effectively be shut down as a ruling against the administration would leave the board with only one member, and it needs three to conduct business.
Obama used the recess appointment to install Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the labor board, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.
The parties’ roles were reversed when a Republican President George W. Bush was in the White House and Democrats controlled the Senate in the final two years of Bush’s presidency. Then, Senate Majority Leader Harry Reid employed the same tactic of convening the Senate every few days to keep Bush from filling vacancies through recess appointments. Unlike Obama, Bush did not press the issue.
Obama has made relatively few recess appointments, 32 in his four-plus years in office, according to the Congressional Research Service. Bush made 171 such appointments and President Bill Clinton filled 139 posts that way in their eight years in office, the research service said.
Since the Noel Canning ruling, a second appeals court also has weighed in against the administration. The 3rd U.S. Circuit Court of Appeals in Philadelphia said in a 2-1 decision that recess appointments can be made only between sessions of the Senate, not any time the Senate is away on a break. That case dealt with an earlier Obama appointee to the NLRB, whose nomination was blocked by the Senate.
Canning could represent a long overdue opportunity for the Court to alter the trend toward judicial avoidance in such disputes — a trend interrupted by the D.C. and Third Circuit decisions.
So, it’s entirely reasonable that Congress can wage guerrilla warfare on the executive branch, shutting down entire agencies by inaction? And could the Senate (for example) shut down the Supreme Court by refusing to confirm new justices? Should the government come to a standstill because Congress has a hissy fit?
Jonathan, I agree with you on most things, but most definitely not in this case.
Where can I send you evidence of the Cook County prosecutors filing of unconstitutional and void indictments that are misleadingly presented to the public, in a murder victim cases.You cover a wide range of things, why not this?The judges are the main culprits ho have given them the license to proceed for decades with this flagrant treasonous process.Regards,Antoine Peters
So long as the senates in session the president can’t appoint,… 11 grade civics teaches you that…. But…. It appears the constitution means nothing to them…. Especially when you teach con law…. Sorta like billionaire thinking…. Eh…. What’s a few million…. When you got more….
It seems the president’s enablers are saying “Well, it’s against the law but not as bad as….” A 4th grade argument. But, it is consistent w/ the current duopoly philosophy, “Our candidate may suck, but he/she doesn’t suck as bad as theirs.” More enabling. We are quickly becoming a country of enablers. Is there Al-Anon for duopolists?
More input from Scotusblog on Supreme Court developments:
Court grants new cases
By Lyle Denniston on Jun 27, 2013 at 9:37 am
In a final round of orders for the Term, the Supreme Court on Thursday granted three new cases but delayed further action on one of them — an abortion rights case from Oklahoma — until after it gets answers to questions sent to that state’s Supreme Court. After the state court responds on the scope of a new state law, the Justices will decide what it will do with an appeal by defenders of that law, although it did grant review of the case.
The Court agreed to hear, in its next Term, the cases of White v. Woodall (12-794), involving jury instructions in a death penalty case, and Paroline v. United States (12-8561), limiting the question in that second case to a newly crafted question about restitution orders in child pornography cases. (Case page is forthcoming in Paroline.)
Continue reading »
to continue reading one has to go to Scotusblog
This is a service from Res Ipsa Dogalogue.
News from Scotusblog:
Thursday round-up
By Matthew Lanahan on Jun 27, 2013 at 10:12 am
The Court issued the last three decisions of the Term yesterday, bringing the total decisions this week to eleven. Coverage and commentary have focused on the decisions in the two same-sex marriage cases, United States v. Windsor and Hollingsworth v. Perry. Kali Borkoski has a rundown of this blog’s coverage here; Dan Stein and Sam Barr also provided afternoon and evening round-ups of coverage, respectively. Continue reading »
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to continue reading one must go to Scotusblog.
The dogpac is meeting tonight to consider our blog options. We consider it a big failure of the Turley blog to omit coverage of the Supreme Court decision which struck down the Voting Rights Act of 1965, which was reaffirmed by the Senate in a 98 to zip vote in the year 2006.
I think the word “original” will be used a lot in the briefing, oral argument, majority opinion, and the opinion of the dissent.
Mike,
I submit that although they are related problems, the expanding unitary Executive and the malfunction/malfeasance of the Legislature are discrete systemic problems in themselves.
Let’s put this into perspective. Since World War II the U.S. participated in 5 major wars without a formal declaration of war as specified in the Constitution.
The train of constitutional government left the station in the Korean “Police Action”
Also as Raff says:
“The Senate did not choose to leave the position vacant. A rabid minority of senators has decided to stop any appointment to any committee or agency or judicial seat that might impair their ability to allow a minority of Senators to control the functioning of this government. When the rules of the Senate have been hijacked and the Senate majority leader does not have the gumption to face reality, any President will be held hostage. Will this stop SCOTUS from stopping these alleged recess appointments? I don’t know, but this same intransigence is negatively impacting judicial seats around the country.”
The system is broken and the recess appointments may rank as one of the few good things Obama has done.
Jeso Dogs. Quit being so rough on Roberts and Turley. The Roberts guy ignores the intent of Congress and the Turley guy ignores the biggest case since Dredd Scott. As a Saint Louis dog I know about Dredd Scott and Missoura.. There was another case out of Missouri which would not get the light of day under the Roberts court. Shelley v. Kraemer.
Yeah, Congress did not know what it was doing when it voted 98-0 on the Voting Rights Act reaffirmation in 2006. Seven years ago right Roberts?
Impeach Roberts and the horse he rode in on. Bigot, bigot bo bigot, nanna fanna fo midget. Roberts! (name game)
Hotsie Totsie, I smell a Nazi.
You Roberts, not Turley. Says Curley. (Three Stooges)
So, yeah the pork story was good and the one about bla bla. But I guess the most important case since Dredd Scott wont get any play on this so called law blog. The thing speaks for itself. Kind of like Dick Cheney. Or Dick Nixon. Res ipsa.
BarkinDog here. I am not as rough on Turley and the failure to put the topic up on the blog. What the heck. Who needs to vote anyway. Us dogs don’t get to vote. Maybe in Cardinal Nation on the West Bank. Actually, as a guide dog for a half blind guy I have voted early and often. Four paws good two hands baaaaaad. (play on words there from Animal Farm) Heck the South is already all Red State RepubliCon. Roberts can undo the Voting Rights Act and go down in history. As a B guy. Bigot guy. Yeah, you Roberts, The B Guy. You two you two Italls on the Court.
Yeah. Important topic. One of the most important topics of the 21st Century is the Supreme Court’s decision striking down the Voting Rights Act.
It does not bear notice here on the Turleyblog.
Remember the song called Bye Bye Miss American Pie?
Drove my Chevy to the Levee but the Levee was dry
Good old boys drinking whiskey and rye
This will be the day that I die.
Yeah. End of an era. End of the Exceptional Nation. How many bubbles in a bar of soap Mr. Roberts? Mr. Turley? You angling for a job on the DC Court of Appeals? That why this case does not get any play here?
DC is sort of South. Right across from Virginia. Red State.
http://billmoyers.com/content/slideshow-the-senates-broken-confirmation-process/ So true, rafflaw
I have to take issue with the phrase “to fill a position that the Senate has chosen to leave vacant”. The Senate did not choose to leave the position vacant. A rabid minority of senators has decided to stop any appointment to any committee or agency or judicial seat that might impair their ability to allow a minority of Senators to control the functioning of this government. When the rules of the Senate have been hijacked and the Senate majority leader does not have the gumption to face reality, any President will be held hostage. Will this stop SCOTUS from stopping these alleged recess appointments? I don’t know, but this same intransigence is negatively impacting judicial seats around the country.
JONATHAN:
We all know what happens when one criticizes or embarrasses the beloved leader of the Security States of Amerika. I trust you’ve measured your comments accordingly.
Any small step toward reigning in the expanding unitary executive is appreciated whether it comes from the judiciary or the legislature.
Now if we could only get something done about that whole pesky “I can kill American citizens without due process” thingy.
talk about the imperial presidency, Obama has violated the Constitution so many times its not even funny, no wonder he and Putin get along so well. he was a constitutional law professor at Harvard. and I’m the Easter Bunny.
Republican obstruction must be respected at all costs. Further, I look forward to newly scotus approved red state voter suppression in order to guarantee even more mean spirited, racist public policy than we enjoy today.
While I am happy that SCOTUS will review these recess appointments, I no longer trust them.
After the Roberts decision on Obamacare (being a tax), and the recent Salinas decision, I believe that SCOTUS is causing more harm than good.