The Supreme Court is set to hear a major case next Monday about the president’s power to temporarily appoint nominees when the Senate is not conducting business. And while the case may suddenly be less consequential in the near-term after Senate Democrats eliminated the 60-vote threshold for most nominees, it still carries important implications.
If the Obama administration loses this case, potential chaos awaits: an unknowable number of executive actions could be invalidated.
The short-term impacts of the ruling, expected by the end of June, are somewhat less far-reaching as long as Democrats hold the majority, because President Barack Obama no longer needs Republican votes to confirm executive and non-Supreme Court judicial nominees. But even without the filibuster, senators have tools to slow down — if not thwart — nominations.
“There’s a little bit less at stake here because of what the Senate has done,” said Norm Ornstein, a congressional scholar at the American Enterprise Institute. “But it’s still important. There’ll still be occasions when the president will need the recess-appointment power.”
At issue in National Labor Relations Board v. Noel Canning is the validity of temporary appointments the president makes when the Senate is on unofficial recess. These pro forma sessions — when the chamber doesn’t conduct business but technically gavels in and out — generally occur because the Constitution says a chamber may not officially recess for more than three days without the other chamber’s consent.
But the outcome of the case may be deeply consequential next year — and onwards — if Republicans win back the Senate majority. It means Obama would have no backup option to staff executive agencies if a hypothetical Majority Leader Mitch McConnell decides to blockade nominees — as he has done while minority leader.
“It’s tremendously important with respect to executive power and the relationship between the executive and legislative branch,” said Caroline Fredrickson, the president of the left-leaning American Constitution Society. If the government loses the case, she said, “it’s going to put a real handcuff on the president to be able to fill vacancies as necessary, and add another layer of obstruction to an already broken down process.”
The legal challenge, supported by all 45 Republican senators, contends that several decisions made by the NLRB, which cracks down on unfair labor practices by businesses, are invalid because recess-appointed members played a decisive role in making them. Until last summer, Obama had resorted to recess-appointing members of the NLRB and some other agencies because Republicans were blocking their confirmation.
“The president made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even trying to obtain its advice and consent,” said Senate Minority Leader Mitch McConnell (R-KY). “The President was dismissive of the Constitution’s constraints on his power, saying he would ‘refuse to take no for an answer.'”
The case was brought by Noel Canning, a corporation that sued to block NLRB decisions made by recess appointees regarding its workers’ collective bargaining practices. The D.C. Circuit Court of Appeals sided with Noel Canning, arguing that the pro forma sessions during which they were appointed didn’t count as a recess.
“What strikes me the most about it is the breadth and ridiculousness of [the D.C. Circuit] decision,” said Ornstein. “The crux of the dispute brought before the court was about a few specific instances. But the D.C. Circuit panel did what [Chief Justice John] Roberts did with the Citizens United case and took it to the next level by saying nearly all recess appointments were unconstitutional.”
A victory for Noel Canning has the potential to implicate all sorts of prior government actions made by boards that relied on members appointed during unofficial recess. Of course, the justices could limit the breadth of the decision as they please, but it may be legally tricky to uphold some executive decisions that relied on recess appointments while overturning others.
“It’s disturbing and an unfortunate development, but it’s notable that conservative legal organizations are following every possible avenue to undo any positive regulation that has been adopted under the Obama administration,” said Fredrickson. “So [if Noel Canning wins] they’ll absolutely try and challenge actions the president has taken.”