Before you continue, you should get yourself up to speed by reading these two articles from the Washington Post:
This article talks about the initial ruling by the U.S. Court of Appeals for the D.C. Circuit.
This article talks more about the questions that the Supreme Court needs to address as well as how it is likely to rule.
As explained in the second article, in this case, NLRB v. Noel Canning, the Pepsi bottling company lost a NLRB ruling and challenged it by challenging the legitimacy of the members that Obama had appointed as recess appointments in January 2012. During this time, even though most senators had left to take time off, the Senate was still having pro forma sessions (according to the Senate website, these are brief, minutes-long meetings in which no business is conducted) every few days to prevent the president from making recess appointments, since the Senate was still technically "in session" and not "in recess." Thus, according to the Constitution, the president may have had no authority to make these recess appointments if the Senate was never in recess in the first place, and that is exactly how the D.C. Circuit ruled.
As explained beautifully yet again in the second article, the Supreme Court needs to address three issues: 1) what constitutes a "recess," 2) whether the president can fill already existing vacancies or only vacancies that occur during the recess, and 3) whether the president can make recess appointments when the Senate is having pro forma sessions in which no business is conducted. The justices will need to be deliberate in how they rule because this is a case with the potential to significantly restrict the president's power and one that has no existing precedent to guide them. Even though the purpose of the recess appointment has changed over the years, from dealing with an absent Senate to overcoming a resistant one, presidents, both Democratic and Republican, have maintained the practice of making recess appointments for around 200 years, and this is something that, in my opinion, the Supreme Court likely cannot ignore. Personally, I think the Supreme Court may be hesitant to issue a ruling that would severely limit the president's appointment powers and significantly shift the Senate-president power balance like the D.C. Circuit decision does.
Then, is the de facto precedent in this case set with the presidents' practice of making recess appointments? Since it is not a legal precedent, can the Supreme Court ignore it? How do you think the Supreme Court should/will rule on the three issues above or in general, and why? If the original intent of the recess appointment was to allow the president to make appointments when travel was slow and the Senate could not be physically present, just how relevant or necessary are they today?
2 comments:
In response to Patrick's last question, I feel that today's use of the president making recess appointments is out of touch with its original purpose, which was created primarily to work around the slow transportation issues of the eighteenth century.
However, I feel that the Supreme Court will not rule in favor of limiting the president's powers. The strength of a ~200 tradition of recess appointments will, I believe, outweigh the question of the practice's relevancy today. Also, I agree with Patrick in that the Court is probably reluctant to make any severe limitations on the president's powers.
On a practical level, Obama's actions aren't all that harmful or tyrannical. The "logical" leap suggesting that Obama's interpretation of recess appointments would give “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction" is nothing but a farce. The use of recess appointments during pro forma sessions is a regular feature, and as said in the article used substantially less by Obama. To argue that this issue is nonpartisan would mean that both sides have been calling for its abolishment consistently during periods of different majority party control, which has not happened. The very term "pro forma" means perfunctory, or a practice that is done purely on formality. Congress is effectively in recess when it convenes with a single, solitary senator every 3 days or what have you to do absolutely nothing. To claim otherwise would be practically admitting to a lie. Most senators who wish to stonewall appointments and nominations by the president will probably be unable to answer or sidetrack any question related to any plan to actually fill the position. It's just a partisan block to prevent the other side from doing anything. Recess appointments are sometimes the only way a position will actually get filled when a Congress is too busy splitting itself apart on which party it happens to identify itself with.
While there is no legal precedent regarding recess appointments, there definitely is de facto precedent with respect to the two century long practice of recess appointments. I think it's unlikely that the Supreme Court will overturn the appointments or change its current state.
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