Four reasons why Noel Canning still matters in a post-nuclear world

Elizabeth B. Wydra from the Constitutional Accountability Center argues, in this commentary, that the Noel Canning presidential appointments case has broad implications for presidential power and the functioning of our government.

U.S. Capitol (Flickr image from cliff1066)

U.S. Capitol (Flickr image from cliff1066)

On Monday, the Supreme Court will hear the first oral arguments of 2014.  On the calendar that day is NLRB v. Noel Canning, which addresses the scope of the President’s recess appointment power. The questions at issue are whether the President can use the recess appointment power 1) during a recess that occurs during a session of Congress rather than between sessions; 2) to fill vacancies that exist during a recess as well as those that arise during one; and 3) when the Senate is holding pro forma sessions during a recess.

Background on the Case:

As the Senate went into recess immediately after the start of its new session in January 2012, it had failed to act on three of President Obama’s nominees to the five-member National Labor Relations Board, thus making the Board unable to operate per a 2010 Supreme Court ruling. To enable the NLRB to continue to function, President Obama made three appointments pursuant to the constitutional power that Presidents of both parties have used since the Founding to make temporary appointments while the Senate is in recess.  (Indeed, in the 2010 case holding that the NLRB must have at least three members to act, Chief Justice Roberts pointedly asked why the recess appointment power was not a solution to the problem of vacancies on the Board.)

Undeterred, businesses then challenged rulings made by the NLRB, arguing they were invalid because President Obama lacked the authority to make these recess appointments. The Court of Appeals for the D.C. Circuit agreed, ignoring long-standing practice and the text and history of the Constitution. This ruling placed in jeopardy a raft of NLRB decisions issued since those recess appointees joined the Board. The government appealed and the Supreme Court agreed to hear the case.

When Supreme Court review was granted, Canning was considered to be one of the blockbuster cases of the Term. However, confirmation of NLRB members in regular order and then a rules change in the Senate regarding filibusters has changed the landscape and lowered the heat around Noel Canning considerably. But the stakes are still high, with many potential consequences, not least of which is whether the Recess Appointments Clause of the Constitution will effectively be rendered a dead letter. That alone makes Noel Canning worth watching, but here are four more reasons why it matters:

1. Senate Obstruction Is Far from Over

In times of divided government—something that is increasingly a way of American political life—the Senate can simply refuse to move nominees at all. And while the threat of a filibuster has been removed, there are still many mechanisms by which Senators can delay, hold, or outright block nominees. This can make it difficult, if not impossible, for a President to select his or her team and keep our government running at full capacity. Tactics can range anywhere from the small, e.g., invoking something called the “two hour rule” to prevent a committee from meeting and holding a hearing on a nominee, to the large, e.g., home-state senators not returning blue slips on a judicial nominee, thus preventing the nomination from moving forward indefinitely. On the Senate floor itself, any senator can still place a hold to delay or prevent action on a nominee. The need for recess appointments and a still-robust Recess Appointments Clause to ensure a properly staffed government has lessened in the wake of the filibuster rule change, but it has certainly not been eliminated.

2. More Than 1,000 NLRB Decisions Could Be in Jeopardy

Accepting the ahistorical and myopic reading of the Recess Appointments Clause urged by Noel Canning would overturn the long-settled understanding of the Clause, upsetting the equilibrium between the political branches created by our Constitution’s Framers and followed by the Executive and the Senate since the Founding.  In addition to the damage that could be done to our constitutional framework, invalidating the President’s recess appointments in this case would put in jeopardy rulings by the National Labor Relations Board, which handles matters regarding workers’ rights to improve their workplace conditions and wages.

Indeed, according to the Chamber of Commerce, which is pressing the challenge to President Obama’s NLRB appointments, at least 1,302 published and unpublished decisions, dating back to August 27, 2011, are “suspect” under the D.C. Circuit’s ruling.   At the very least, a ruling in Noel Canning’s favor would generate a flood of further litigation. At worst, such a ruling could cause chaos at the NLRB as the agency attempts to rehear cases and reissue more than 1,000 opinions.

As documented by CAC, the Chamber of Commerce has been phenomenally successful before the Roberts Court as an amicus. Noel Canning marks a major milestone for the Chamber: for the first time, it is representing a company before the Supreme Court rather than acting as an amicus. Given this major evolution of its litigation program, the Chamber is sure to pursue litigation relentlessly on any matters the Court in Noel Canning leaves open.

3. Supreme Hypocrisy by Conservatives

The Noel Canning case has, strangely, become something of a conservative cause célèbre. Senate Minority Leader Mitch McConnell has filed a brief on behalf of every Senate Republican and has even been granted argument time. His brief is one of the amicus briefs supporting the Noel Canning position. He is joined in filing a brief by Speaker of the House John Boehner. Two authors of the Speaker’s brief, Jay Sekulow and Stuart Roth, are certainly familiar with the recess appointments issue. After all, they argued the complete opposite in 2004, when they submitted a brief supporting the validity of President George W. Bush’s recess appointment of William Pryor to the Eleventh Circuit.

Conservatives have not only switched their position, they have come out in force in an attempt to stymie President Obama’s ability to do his job, with 24 total briefs filed in support of Noel Canning’s position from a range of high-profile conservatives including lawyers, advocacy groups, and Republican state attorneys general.

This hypocrisy and flip-flopping is all the more strange because, as a general matter over the past half-century, it’s been conservatives, not liberals, who have been pushing for a broad reading of powers granted to the President. That seems to have gone out the window with President Obama making the appointments.

4. An Originalist Showdown

While this case may be an issue of first impression for the Supreme Court, the political branches of our national government have been interpreting the Recess Appointments Clause since George Washington was President.  The assertion that the President did not have authority to make the recess appointments at issue in the Noel Canning case would repudiate the constitutional legitimacy of thousands of appointments made by Presidents including Washington, Thomas Jefferson, Ronald Reagan, Bill Clinton and George W. Bush.  The choice put to the Supreme Court is whether to adopt the D.C. Circuit’s myopic reading of the Recess Appointments Clause, or whether to accept two hundred years of practice and general understanding of the Constitution’s text and structure, from the Founding Era to the present day.

The original design of our Constitution created a President who would be on-duty 24/7, charged with ensuring that the laws are faithfully executed.  The Framers contrasted the always on-duty Executive with Congress, which would go into recess from time to time.  By giving the President the power to “fill up all Vacancies that may happen during the Recess of the Senate,” the Framers ensured that the President could fill any vacancies that existed when the Senate was unable to perform its advise-and-consent function—and it makes no sense that the Framers would have given this power only to take it away if Congress was in a recess during a session rather than between sessions.

Presidential appointments. Acronyms for government agencies. Arcane Senate rules. NLRB v. Noel Canning certainly seems like a case that only a D.C. lawyer could love, but in fact it has broad implications for presidential power, the functioning of our government, and, of course, the day-to-day lives of workers around the country.

Elizabeth B. Wydra  is Constitutional Accountability Center’s Chief Counsel.  She filed a brief in the Noel Canning case. Wydra frequently participates in Supreme Court litigation and has argued several important cases in the federal courts of appeals.  

Related Constitution Daily Stories

Why the Senate majority should have a role in Noel Canning

National Labor Relations Board v. Noel Canning: A case of presidential power

President Obama can’t dictate Senate rules

Comments

comments