On January 4, 2012 President Obama appointed three strongly pro-union members to the five member National Labor Relations Board (NLRB). The Board functions like a court, arbitrating disputes between unions and employers.
One of the disputes Obama’s Board members considered in 2012 was Noel Canning, a Pepsi-Cola bottler Vs the Teamsters union. As the President expected the Board found in the union’s favor.
But Noel Canning appealed the ruling to the US Court of Appeals, D.C. circuit claiming that the Board acted without the required quorum because three of it’s members were appointed in an Unconstitutional manner.
NLRB members are appointed by the President and must be confirmed by the Senate, the same process the Constitution sets forth for Cabinet Secretaries and federal judges. The Constitution also authorizes a President to make appointments without Senate confirmation if the Senate is in recess and thus unavailable to conduct its confirmation process.
The Senate had declared itself to be in session on January 4, not in recess. However most of the Senators were out of Washington on holiday break and the few who remained conducted very brief “pro-forma” sessions on some days and no business at all on other days. President Obama asserted authority to make recess appointments based on his opinion the Senate was actually in recess.
But The Court agreed with Noel Canning that the President violated the Constitution because he appointed and installed the three NLRB members without the required Senate Confirmation.
The Court’s reasoning couldn’t be more compelling. The Constitution grants the President the power to make appointments without Senate Confirmation only during “THE Recess,” which is established, described and required every other year by the Constitution itself. Not only that, the vacancies being filled have to “happen” or occur during the same bi-annual recess. That is, the person previously holding the position must have resigned during the recess.
The court acknowledged that during each two year Congressional session the House and Senate recess many times. They recess at the end of each day. They recess for weekends and holidays. They recess for lunch. But none of these “intra-session” recesses qualifies as “THE” inter-session recess” established by the Constitution.
The Court found that Obama’s interpretation of the Constitution’s recess appointments clause was an abuse of his power, and that based on his reasoning no appointment would ever have to be confirmed by the Senate as long as he announced it on a Sunday or during the Senate’s lunch break.
While the media have sought to portray this case as a spat between Republicans in the Senate wanting their way and the President wanting his way, the Court was refreshingly non-partisan and solidly based on the clear language of the Constitution:
The Senate’s desires do not determine the Constitution’s meaning. The Constitution’s separation of powers features, of which the Appointments Clause is one, do not simply protect one branch from another. These structural provisions serve to protect the people, for it is ultimately the people’s rights that suffer when one branch encroaches on another.
As Madison explained in Federalist No. 51, the division of power between the branches forms part of the “security [that] arises to the rights of the people.” Or as the Supreme Court held in Freytag, “The structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic.”