against the president would ‘repudiate the constitutional legitimacy’
of thousands of appointments. A lawyer for Senate Republicans calls
the episode a ‘complete abuse of the process.’
WASHINGTON — The Obama administration’s top constitutional lawyer
confronted a skeptical U.S. Supreme Court on Monday as he tried to
convince a majority of justices that the president acted properly in
January 2012 when he declared the Senate to be in recess and
unilaterally appointed three new members of the National Labor
Without President Obama’s quick action in using his recess appointment
authority, the five-member NLRB would have lost its quorum and any
ability to render decisions.
Placing labor-friendly members on the NLRB was a high priority of the
administration in 2011. Not everyone saw this as progress. Some of the
board’s actions triggered congressional opposition, opposition that
bloomed into a concerted effort to block Obama nominees to the NLRB.
The effort didn’t end there. Aware that the president might try to
fill the vacant posts through recess appointments, the Senate agreed
to remain in session throughout the winter break in December 2011 and
To accomplish this, the Senate conducted a series of pro-forma
sessions, one every three days throughout the entire period.
The action was designed to prevent the president from using his recess
appointment authority to bypass the usual requirement that he obtain
the advice and consent of the Senate for nominees.
It was against that backdrop that Mr. Obama in January 2012 brushed
aside the Senate’s pro-forma sessions and declared that he was making
three recess appointments to the NLRB.
A month later, Noel Canning, a bottling company from Washington State,
lost its case before the NLRB. As part of its appeal, company lawyers
questioned the validity of the three recess appointments to the NLRB.
A federal appeals court agreed with Noel Canning and ruled that the
three appointments were beyond the president’s authority.
Now, the administration is asking the Supreme Court to reverse the
appeals court and declare that the president has the power to ignore
pro-forma Senate sessions and treat that period as if the Senate is in
recess for purposes of making recess appointments.
U.S. Solicitor General Donald Verrilli argued that the Senate could
not manipulate its recess schedule in a way that would undermine the
president’s broad power to keep the executive branch fully staffed and
He told the justices that nearly all the nation’s presidents had made
recess appointments under a variety of scenarios. If the court upheld
the appeals court and ruled against the president, he said, it would
“repudiate the constitutional legitimacy of thousands of appointments
by presidents going back to George Washington.”
More specifically, he said, dozens, and perhaps hundreds, of NLRB
decisions would be “under a cloud.”
Washington Appellate Lawyer Noel Francisco urged the justices to
uphold the appeals court decision and embrace a more restrictive view
of executive power.
The president’s recess appointment authority is contingent on the
Senate being in recess, a procedure that is entirely within the
Senate’s discretion, said Mr. Francisco, who is representing Noel
Canning in the case.
“The one thing the president may not do is force the Senate to act
against its will and run around the Senate’s refusal to act [on a
nominee],” he said.
Francisco noted that in the early days of the country, members of
Congress would make the long, difficult journey to Washington to
conduct the nation’s business and then call a recess before returning
home for months at a time. Since it was difficult to call Congress
back into session every time a vacancy arose that needed to be filled,
the framers of the Constitution included a provision to address that
The clause reads in part: “The president shall have power to fill up
all vacancies that may happen during the recess of the Senate.”
Francisco said the clause sets out a procedure that is less relevant
today than 200 years ago. Today, he said, senators could quickly be
called back to Washington by the president in an emergency.
Washington Appellate Lawyer Miguel Estrada argued on behalf of Senate
Republicans that the Obama recess appointments were aimed at bypassing
the Senate’s role in approving nominees, rather than upholding
He said the president waited to make his recess appointments until
Jan. 4, 2012, one day after the new Senate convened (in a pro-forma
session) on Jan. 3.
He noted that Obama could have taken the action before the new session
began on Jan. 3, but that by waiting a day the length of the recess
appointments increased from one year to two years.
Mr. Estrada said the episode represented “the bottom of the slippery
slope on the Recess Appointments Clause” and “a complete abuse of the
“It is being used for no other purpose than to overcome the Senate
opposition or the Senate disinclination to agree with the president’s
nominations,” he said.
In his rebuttal, Solicitor General Verrilli challenged the charge. “It
is just not the case that this is an end-run around the advice and
consent of the Senate,” he said.
Several of the justices raised similar questions during the 90-minute session.
Elena Kagan, an Obama appointee and former solicitor general in the
Obama administration, noted that the Recess Appointments Clause
appears to have been written to address the problem of congressional
More recently, she said, “presidents of both parties essentially have
used this clause as a way to deal, not with congressional absence, but
with congressional intransigence, with a Congress that simply does not
want to approve appointments that the president thinks ought to be
“This is not the horse and buggy era anymore,” Justice Kagan said.
“There’s no such thing truly as congressional absence anymore.”
Verrilli, who replaced Kagan as solicitor general, disagreed. The
president had to act, he said, the NLRB was about to “go dark.”
“Yes,” Kagan replied, “as a result of congressional refusal, not as a
result of congressional action.”
Verrilli tried to regroup. “Perhaps it sounds like this is an
aggressive assertion of executive authority,” he said. But what the
Framers were most concerned about, he said, was Congress draining
authority from the executive branch.
“The executive needed to be fortified against those actions by
Congress,” he said.
The case is National Labor Relations Board v. Noel Canning (12-1281).
A decision is expected by late June.