In Noel Canning v. NLRB, slated for arguments later this term, the Supreme Court will review the validity of three recess appointments President Obama made to the National Labor Relations Board in January 2012. (While the contemporaneous appointment of Richard Cordray is similarly contested and would be affected by a ruling on the merits, it is currently the subject of separate litigation). Specifically, the soft-drink bottling company Noel Canning is challenging a judgment rendered against it by the NLRB on the grounds that the Board did not possess a quorum. In New Process Steel v. NLRB, the Supreme Court invalidated a ruling by a two-member panel of the NLRB because its establishing legislation provides that “three members [of five] shall, at all times, constitute a quorum of the board.” Canning thus contends that since the President’s three appointments, which filled the Board and conferred it a quorum to conduct business, were unconstitutional, the Board’s ruling is void.
The Recess Appointments Clause of Article II provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” This power unquestionably extends to intersession or sine die recesses, recesses that occur between annual sessions of the Senate. While it less clearly applies to intrasession recesses – recesses within a particular session of the Senate – presidents have historically utilized such a prerogative “if they are of substantial length.” However, the Obama administration was the first to make recess appointments during pro forma sessions of the Senate. Literally meaning “as a matter of form,” these sessions have been employed traditionally as a means to satisfy the Adjournment Clause and more recently as a minority tactic to deliberately prevent recess appointments. In an Office of Legal Counsel memorandum prepared following the NLRB appointments, the government justified its actions on the contention that pro forma sessions, during which a single senator often gavels the session in and out in a manner of minutes without any business being conducted, did not have the legal effect of interrupting the Senate’s recess. In other words, since pro forma sessions do not actually constitute a break in an intrasession recess, the recess was of substantial length to render the appointments valid.
As demonstrated by three circuit courts rulings on the appointments’ validity, the meaning of the Recess Appointments Clause depends on two primary questions. First is the issue of whether the phrase “that may happen” requires the president to fill only those positions that actually became vacant during the recess. The second inquiry is the scope of the phrase “the Session of the Senate,” in particular, whether it applies to intrasession and intersession recesses or intersession recesses alone. The D.C. Circuit, the court below in this case, ruled for Canning on both questions, holding that recess appointments were only valid if the positions became vacant and the appointments were made during an intersession recess (This is in addition to the Third and Fourth Circuits, who have also held the appointments unconstitutional). The Court will review the D.C. Circuit’s judgment on these questions and will additionally rule on the distinct question of whether recess appointments may be made when the Senate is convening every three days in pro forma sessions.
While the D.C. Circuit went too far in abandoning its functionality – disturbing a historical and practical equilibrium by invalidating intrasession appointments as well as those that did not actually arise during the recess altogether – the extension of the Recess Appointments Clause to pro forma sessions is a bridge too far
Ascertaining the answers to these questions depends on one’s mode of constitutional interpretation. To originalists, the Recess Appointments Clause would seem to reach only those vacancies that actually arose during an intersession recess. First, since the phrase “that may happen” would be textually meaningless if construed to include all vacancies that merely exist during a recess, the clause was unlikely intended to include those recesses that arose when the Senate was in session. Second, because “Recess” is both singular and preceded by the indefinite article, its text most clearly references only intersession recesses. Otherwise, “the Recess” of the Senate could include intrasession recesses of any length, the constraint of substantial length notwithstanding. Furthermore, because the clause was designed to address the constraints of the time period – namely, travel times that required months-long intersession recesses – intrasession appointments when the Senate is conducting pro forma sessions would contravene the clause’s intended scope. After all, advocates of this position contend, there is no distinction between pro forma and other sessions because there is nothing actually preventing the Senate from conducting business. In its brief, in fact, Canning hastens to note that Congress passed and the President signed legislation during the same pro forma sessions in which the NLRB appointments were made.
Alternatively, advocates of intrasession recess appointments generally and pro forma appointments in particular are compelled to adopt a more functional position. While it is true that the Recess Appointments Clause originally spoke to travel difficulties, this argument posits, the clause more generally refers to instances in which the Senate is unavailable to conduct its business. Pro forma sessions, in OLC’s view, “do not interrupt the intrasession recess in a manner that would preclude the president from determining that the Senate remains unavailable to receive communications from the President or participate as a body in making appointments.” Although the government concedes that the Senate can foreclose recess appointments by remaining in session, it views pro forma sessions as a legally inadequate form of doing so. By allowing the Senate to avoid the Recess Appointments Clause’s implication thus, the government argues in its brief, would “disturb the balance that Article II strikes between the President and the Senate.” Adopting Alexander Hamilton’s language, such a disruption legitimizes the use of the “auxiliary method of appointment” the clause sets forth.
However, Canning’s brief draws a salient analogy to the Court’s invalidation of the line-item veto in Clinton v. City of New York. “The Constitution’s structure,” Justice Kennedy wrote in his concurrence, “requires a stability which transcends the convenience of the moment.” Just as the line-item veto served a functional need in an era of omnibus appropriations bills which the Framers could not possibly have anticipated, so too does the use of pro forma sessions to prevent recess appointments favor a more elastic interpretation of that clause. However frustrating this phenomenon, though, the Constitution demands fidelity to the stability it sets forth. Indeed, advocates of pro forma appointments’ legitimacy in this case also institutionalized the sessions as an appointment-preventing tactic during prior administrations. While the D.C. Circuit went too far in abandoning its functionality – disturbing a historical and practical equilibrium by invalidating intrasession appointments as well as those that did not actually arise during the recess altogether – the extension of the Recess Appointments Clause to pro forma sessions is a bridge too far. A matter of form though they may be, with the Senate “absent in fact but present only by virtue of a legal fiction,” on this question it is the form that matters.