Supreme Court Takes Up Challenge To Obama’s Appointment Authority

Supreme CourtPresident_Barack_ObamaRecently, I testified on the concentration of authority in the Executive Branch and an array of unconstitutional acts committed by President Barack Obama in the circumvention of Congress. For prior columns, click here and here and here and here. One of the key areas discussed in my testimony was the President’s abuse (in my opinion) of his recess appointments power. I have two law review articles out on the issue. 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). Now the issue is to be heard today by the Supreme Court in Noel Canning v. NLRB, No. 12-1115.


Roughly two years 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. The OLC paper, in my view, represented a low for the office which once prided itself on its independence from the White House and objective legal analysis.

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.”

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.

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.

In my view, this is not a close question and that the President has, again, disregarded the purpose and language of the Constitution to deal with a political impasse in Congress. Now that the Democrats have curtailed the use of the filibuster power, a negative ruling may trigger a new round of such changes. That is a political decision. However, this constitutional dispute raises an important question of the limits on executive power in a system increasingly dominated by the Chief Executive. I believe that the Democrats will soon loathe the day that they assisted Obama in this expansion of power when another person sits in the White House.

58 thoughts on “Supreme Court Takes Up Challenge To Obama’s Appointment Authority”

  1. We have all this diversity on the Supreme Court, it is about time to have a dog. That’s right. The Original Framers would be appalled at an Italian, an African, a Jew, three women, a Spanish origin woman, a Californian, all from Harvard and Yale. The Court needs guidance and civility, someone who can preach blind justice to the other eight, a Beagle who can push a chair, a Lab who can swim. When Ginsberg retires we need a dog on the bench. No woof (BS) here.

  2. I despise both these two parties but do not advocate the president bypassing Congress & the Constitution as that is worse, as shown by several incredible edicts by this president worse than even the Patriot Act that this president now ratifies.

  3. What good is the “supreme law of the land” if those operating the levers of power within government openly circumvent it’s meaning while the once was republics “citizens” ignorantly cheer the criminals on?

  4. John Whitehead, today:

    Another excerpt:

    “Just consider the 2012 presidential election cycle. Both parties spent $1 billion each attempting to get their candidate elected to the presidency. This money came from rich donors and corporate sponsors, intent on getting their candidate in office. Once in office, these already privileged wealthy bureaucrats enter into a life of even greater privilege, unfortunately at the expense of the American taxpayer. It doesn’t even seem to matter whether they’re Democrats or Republicans–they all take full advantage of what one news report described as “a mountain of perks that most Fortune 500 companies couldn’t begin to rival.”

  5. Excerpt from Whitehead’s piece:

    “The unfortunate but simple fact is that the rich sit perched at the top of the government. As Joseph Stiglitz writes for Vanity Fair:

    Virtually all U.S. senators, and most of the representatives in the House, are members of the top 1 percent when they arrive, are kept in office by money from the top 1 percent, and know that if they serve the top 1 percent well they will be rewarded by the top 1 percent when they leave office. By and large, the key executive-branch policymakers on trade and economic policy also come from the top 1 percent. When pharmaceutical companies receive a trillion-dollar gift–through legislation prohibiting the government, the largest buyer of drugs, from bargaining over price–it should not come as cause for wonder. It should not make jaws drop that a tax bill cannot emerge from Congress unless big tax cuts are put in place for the wealthy. Given the power of the top 1 percent, this is the way you would expect the system to work.”

  6. I believe that the Democrats will soon loathe the day that they assisted Obama in this expansion of power when another person sits in the White House.

    -Jonathan Turley

    And I agree.

  7. Scotusblog reports that the Court was leaning in favor of the Legislature during arguments.

    If I was a President I would get someone in the number 2 spot that I really want and then appoint someone I really want for the Number one spot (the G spot) and let the Senate roll over Beethoven for four years and in the meantime the guy or gal that I wanted to begin with is running the duck farm.

  8. The constitution says what the Supreme Court says it says:

    It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.

    If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

    (Marbury v Madison, 5 U.S. 137, and see Wikipedia).

  9. Davidm2575, tell us you are really not that stupid. The GOP has done everything they can to destroy the workings of Congress, unless they get their own way. They’re like a bunch of children throwing temper tantrums. To those of us outside in the regular world, they are complete jerks. They do NOTHING, and get paid for it.

    1. emw1 wrote: “The GOP has done everything they can to destroy the workings of Congress, unless they get their own way.”

      I don’t see it that way at all. I see the Democrats, the news media, and President Obama portraying them that way, but from my perspective, they are representing me the voter to people who are doing things that I loathe. For example, in this last government shutdown, the GOP was portrayed as causing the shutdown, when in fact it was the President and the democratically controlled Senate who allowed no progress. The GOP in the House were representing me, voting the way I would want them to vote, on the issue of funding Obamacare.

      I think if our Democrat President would lead and engage both sides of the aisle, the way President Clinton did with Newt Gingrich, we would have a working Congress. Instead, it seems like President Obama wants a broken Congress so he can cast aspersions and blame.

      I am signed up for emails from both the Democratic Party and the Republican Party. The most marked distinction is that the emails from the Democratic Party are always vile castigations of the Republicans, painting them in the worse light possible. In stark contrast, I rarely receive emails like that from the Republican party. The Republicans are rational and clear headed, concerned about overspending and being responsible in leadership.

  10. Sham appointments during sham “breaks” when congress conducts no business! Plenty of blame for both sides. Result: the supremes are hearing a case about angels dancing on a pin. No wonder the public despises all 3 branches.

  11. Zari wrote: “The GOP blatant bigotry and downright hatred of President Obama is clear for all to see. The Republicans are destroying our democracy by refusing to cooperate for the good of country.”

    I am a Republican and take issue with you here. The real problem is President Obama’s lack of leadership. Maybe you want a dictator and a tyrant, but Republicans want a representative democracy. We want to keep our Constitution and this great Republican established by it.

    1. davidm The fact is that the GOP members of Congress only want a GOP dictatorship and if they cannot get their way, they are willing to destroy the government. So while I think that Obama is straining the recess appointments language, the absolutely unprecedented GOP obstruction called for some unique measures. I think that Prof Turley is right on this matter, and even more so since it is using an illegitimate dodge to avoid having to get some balls to solve a political problem that should have been dealt with the Senate majority. Prof Turley has thankfully forced Reid to get some balls and use some common sense and take the simple reading and precedent of our Constitution.

      1. randyjet wrote: “The fact is that the GOP members of Congress only want a GOP dictatorship and if they cannot get their way, they are willing to destroy the government.”

        Why would you think that?

        1. davidm I am reading the book The Burglary which I highly recommend to you. It details the mindset of most GOP leaders of that time and from what I have observed recently still have. Unfortunately, the GOP has evolved from a once progressive party in the immediate aftermath of the Civil War to one of the most bigoted and repressive political parties in the US. Even the much maligned President Grant was rather good in many respects in his policies and I changed my standard opinion of him after reading a good bio of him.

          The current topic of this part of the blog is strained use of the recess appointments power by Obama. This method has been necessitated by the desire of the GOP to enforce its minority views on the Senate and administration by refusing to allow the President to name anybody to open posts that were established by law. In the instant case of the suit about the NLRB, the GOP instead of trying to get rid of the Board by conventional constitutional means by a vote in Congress, instead has used its power in the Senate and the cloture rule, to make it extinct by other means. That is the very definition of dictatorship in which a minority abrogates laws by using its power to void the will of the majority apart from normal legislative means. I did not say the GOP advocates a full Police state which is different from a dictatorship, though they often and usually go together after time.

          One of the reasons I support Prof Turley on this subject is that I hated the Bush administration for supporting torture and then denying law, precedent, and reality by simply saying that torture is NOT torture. The Obama administration comes close to this flagrant abuse of cute language. It is almost as bad as those who think that there was any justification for invading Iraq by making and supporting false claims.

          1. randyjet wrote: “I am reading the book The Burglary which I highly recommend to you.”

            Thanks for the recommend. Just added it to my reading list.

  12. If the Constitution wanted to give the President sole power for these appointments, it could have done that. It did not. The Supreme Court should slap Obama’s hand and tell him he is overreaching his powers.

  13. @JTurley: “…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.”

    Careful, Professor — your bias is really showing! It is so obvious that you support the Republican attitudes and actions. But justifying your stand because the three Republicans on the DC Circuit agree with you does not make any of you right. The GOP blatant bigotry and downright hatred of President Obama is clear for all to see. The Republicans are destroying our democracy by refusing to cooperate for the good of country. On this issue, the four comments above are correct about what’s going on here, and you are wrong.

  14. The Framers would be aghast at the way their precious document has been twisted, torn, and shredded to arrive at the absolute mess of the Federal Government we have today.

  15. Pingback: Is Recess Over?
  16. The Recess Appointments Clause has become the Sinter Klaus. There is this Saint Nick guy who the Dutch have given one day on December 5 to hand out presents. They call him Sinter Klaus. He has a black midget with him named Swarte Peet. The Santa thing is divorced from Christ’s BD in this manner and thus when the kids later see the falsity of Sinter Klaus and the coming down the chimney routine with Peet they will not lose faith in Christ as well. It is smart of the Dutch to bifurcate things in this fashion. Congress could have an up or down day on December 5th right before their Christmas Break. All nominees would get an up or down vote that day. If they have to sit all day and all night so be it. On the 6th the Congress can go run off to their home turf and milk the lobbyists and corporate care givers for all its worth. Meanwhile the Executive Branch can get to work and the Judicial Branch can get to work in the new year. A solution to this problem is: Sinter Klaus Day in DC. We don’t need the midget. We already got one called Mitch.

  17. Some people rue the day when they allowed something to happen and others loathe the day. And some still wallow in Watergate.

    I do not agree with some of the word use in this article. The Senate blocks an up or down vote on an appointment by the Philadelphia buster and the article describes it as failure to confirm. I do not like it when Congress is immobile. I don’t like it when Congress takes so much time off for Christmas. I don’t like it when there are four persons waiting in the wings to sit on the DC Court of Appeals and they get no up or down vote. I think a recess appointment can be nullified by an up or down vote on the person appointed during the Christmas break. I want to see more people appointed during this Spring Break. I guess there will be an Easter Break. Then there if coffee break. Mitch McConnell has one thing in mind. He wants Obama to fail. That is why the labor board did not have a full contingent for over a full year. I can not agree with McConnell on that one Teacher Turley.

  18. I agree with your reading of the clause, but the fact is that we have a far more complex government than our founders had. So I think that some leeway should be allowed in recess appointments in the face of outright obstruction of the functioning of the government. The fact is that the Senate and administration are simply using the strained reading to finesse a political problem to avoid the Senate majority having to make tough decisions on the cloture rules. Now that they have finally bitten the bullet, I think this issue will become moot in practice.

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