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Ruling in the Noel Canning case this morning, the Supreme Court unanimously struck down President Obama’s recess appointments to the National Labor Relations Board as unconstitutional but the justices were sharply divided 5-4 in how they reached that conclusion. While Justice Breyer (joined by Kennedy, Sotomayor, Ginsburg, and Kagan) upheld the conclusion of the right-wing D.C. Circuit judges who had struck down the appointments, they did so on a far different and narrower basis: The Senate’s pro-forma sessions meant that it wasn’t in recess to begin with, so there couldn’t be any recess appointments made.
The Court’s majority also wrote that, consistent with practice going back to the 19th century, the Constitution lets the president make recess appointments during any recess (not just ones between two sessions of Congress) and for any vacancy (not just ones that opened up during the recess when the appointment is being made). Justice Scalia (joined by Roberts, Thomas, and Alito) have a much more cramped view: The president can make recess appointments only during the recess that occurs between two different sessions of Congress, and only for a vacancy that was created during that particular recess.
It’s important to remember why this case arose in the first place. President Obama had been driven to make key appointments to the NLRB in January 2012, when the Senate was in recess but having pro forma sessions every three days to make it look like they were still in session. Senate Republicans were preventing the majority from holding a vote on whether to confirm Obama’s nominees (at that time, a minority of 41 senators could prevent any confirmation vote), and the unfilled vacancies would have meant that NLRB lacked a quorum and would no longer be able to fully function and protect the rights of millions of working people.
Although Senate Republicans could not pass legislation closing the NLRB’s doors, they sought to accomplish essentially the same results through another route, by blocking the Senate from voting to confirm new members of the Board. This was widely recognized as part of a larger pattern using obstruction to nullify laws and agencies that they lacked the electoral mandate to overturn or eliminate through legitimate means.
Scalia’s concurrence gives examples of political opposition in the Senate leading to vacancies that cannot be filled, including “if [the Senate] should refuse to confirm any nominee for an office, thinking the office better left vacant for the time being.” It seems a rather cavalier attitude to take to one chamber of Congress unilaterally deciding that the laws of the nation need not be carried out. And it should be noted that this particular constitutional conflict was not brought about by a Senate that thought the NLRB was better left impotent, but by a Senate minority that refused to let the majority fill the agency’s vacancies.