WASHINGTON – The Supreme Court stepped into an important constitutional dispute Monday between President Obama and congressional Republicans over the chief executive’s power to make recess appointments.
The justices said they will review a federal appeals court ruling that found Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board.
The high court case is the latest chapter in the partisan political wrangling between GOP lawmakers and Obama over appointments to the labor board and the Consumer Financial Protection Bureau. Republicans want to rein in both agencies’ powers.
The Constitution gives the president the power to make temporary appointments to fill positions that otherwise require confirmation by the Senate, but only when the Senate is in recess.
At issue for the Supreme Court: What constitutes a congressional recess and does it matter when a vacancy occurs?
George Washington was the first president to make a recess appointment and Obama’s predecessors back to Ronald Reagan made significantly more such appointments than has Obama. On three earlier occasions, federal appeals courts upheld the appointments.
But the nature of the president’s actions, during brief Senate breaks that Congress explicitly said were not formal recesses, is driving the current legal controversy.
The case stems from Obama’s decision to fill the three NLRB vacancies on Jan. 4, 2012, with Congress on an extended holiday break. At the same time, however, the Senate held brief, pro forma sessions every few days as part of the Republicans’ explicit strategy of keeping Obama from filling vacancies through recess appointments. The president also used a recess appointment to install Richard Cordray as head of the financial protection agency, which the GOP had blocked for a year and a half.
Businesses and trade groups quickly went to court to challenge decisions made by the NLRB. Noel Canning, a Washington state bottling company, claimed an NLRB decision against it was not valid because the board members were not properly appointed and that the board did not have enough members to do business without the improperly appointed officials.
In January, the U.S. Court of Appeals for the D.C. Circuit agreed in a sweeping ruling. A panel composed of three Republican appointees said that the only congressional break that counts as a recess is the one that occurs between formal year-long sessions of Congress. Two of the three judges also said that only positions that come open during a congressional recess can be filled through a recess appointment. The court did not address the issue of how short a break can count as a recess.
If it stands, the ruling could invalidate hundreds of board decisions, and call into question the legitimacy of regulations issued by the Consumer Financial Protection Bureau, many of which affect the mortgage industry.
The NLRB also would effectively be shut down as a ruling against the administration would leave the board with only one member, and it needs three to conduct business.
Obama used the recess appointment to install Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the labor board, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.
The parties’ roles were reversed when a Republican President George W. Bush was in the White House and Democrats controlled the Senate in the final two years of Bush’s presidency. Then, Senate Majority Leader Harry Reid employed the same tactic of convening the Senate every few days to keep Bush from filling vacancies through recess appointments. Unlike Obama, Bush did not press the issue.
Obama has made relatively few recess appointments, 32 in his four-plus years in office, according to the Congressional Research Service. Bush made 171 such appointments and President Bill Clinton filled 139 posts that way in their eight years in office, the research service said.
Since the Noel Canning ruling, a second appeals court also has weighed in against the administration. The 3rd U.S. Circuit Court of Appeals in Philadelphia said in a 2-1 decision that recess appointments can be made only between sessions of the Senate, not any time the Senate is away on a break. That case dealt with an earlier Obama appointee to the NLRB, whose nomination was blocked by the Senate.
The two judges in the majority are Republican appointees, while Obama named the dissenting judge.