Justices to Decide the Scope of Recess-Appointment Authority

Constitutional case tests presidents' power to appoint.

, The National Law Journal

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The Obama administration and its supporters claim James Madison, Alexander Hamilton, Thomas Jefferson and Noah Webster. Its opponents, including Senate Republicans, also tout Madison and Hamilton, George Washington and Samuel Johnson.

History and dictionaries are the weapons of choice in a major constitutional battle between the administration and the U.S. Senate over the president's power to make appointments during recesses of that legislative body. And not surprisingly, each side sees in the writings of those historical figures evidence supporting their arguments.

The U.S. Supreme Court on Jan. 13 will take a rare look at the founders' intentions and the meaning of the words in the recess-appointments clause during arguments in National Labor Relations Board v. Noel Canning. Stemming from a commonplace labor dispute, the case has huge implications for future presidents and the Senate itself.

The challenge pits presidents' interest in ensuring the continued functioning of the government — the main purpose of the clause — against the Senate's obligation to give advice and consent to nominations — a key element of the Constitution's checks and balances. And each side claims the other threatens to upset the Constitution's carefully drawn balance of powers.

Constitutional theory aside, the outcome could reverse more than a century of practices. The administration has told the court that at least 14 presidents collectively have made at least 600 civilian appointments (and thousands of military ones) under an understanding of the recess clause rejected by the lower appellate court.

For Constitution nerds of all kinds, the case is a feast for competing approaches to constitutional interpretation. In amicus briefs, blog posts and law review articles, the recess-appointments clause is the focus of originalists, nonoriginalists, textualists and purposivists. And, as the high court case itself shows, it is also another front in ongoing conflicts between labor and management over the direction of the National Labor Relations Board (NLRB).

"I think it's just a mess that [the justices] want to step into this," said longtime Senate and constitutional scholar Michael Gerhardt of the University of North Carolina School of Law. "It's designed for the political bodies to deal with and it's not something courts would necessarily be better able to deal with."

However, the justices have stepped into it by agreeing to review two issues that the Obama administration lost in the U.S. Court of Appeals for the D.C. Circuit, and a third issue that the appellate court did not address.

The appellate court ruled in an appeal by Noel Canning, a Yakima, Wash., soft-drink bottler and distributor, which, the NLRB found, had committed an unfair labor practice in contract negotiations with Teamsters Local 760, also a party in the high court case.

The appellate court held that President Obama's appointment of three new members to the NLRB on Jan. 4, 2012, violated the recess-appointments clause because the Senate was not in recess. The lawmakers had adjourned immediately after the start of the second session of the 112th Congress on Jan. 3, 2012, but had agreed to reconvene for a series of three-day, pro forma sessions, "with no business conducted" between Jan. 3 and Jan. 23, 2012. A lone senator was present to gavel in and out each pro forma session.

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