Monday, January 13, 2014

NLRB v. Noel Canning: what's at stake

Today, the Supreme Court of the United States will hear oral arguments from the petitioner (the National Labor Relations Board) and the respondent (ostensibly listed as "Noel Canning," but in reality  a consortia of people and groups with a vested interest in this case) with regard to the case NLRB v. Noel Canning, an appeal of the decision handed down by the U.S. Court of Appeals, DC Circuit, in January of 2013.

The basic issue that was decided then--and is being challenged now--is the nature of a Presidential power: that of making "recess appointments." Generally speaking, the President is obliged to put his nominations for many offices before the Senate, who are then supposed to vote on these nominations, either approving them or not. But the Senate is not always cooperative in this regard, and the President doesn't always want some nominations to undergo a great deal of scrutiny.

The Constitution provides something of an escape clause in this regard. From Article II, Section 2:
The 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--of making recess appointments--is actually quite specific. The only "Vacancies" the President may "fill up" are those that occurred during "the Recess" of the Senate. Not "a recess," not "a break," but "the Recess." It exists primarily for emergencies, like perhaps the death of the Secretary of Defense during a time of war. Rather than having to wait for Congress to come back into town and begin a new Session, the President is permitted to immediately appoint a replacement, who would then hold office until the end of the next Session of Congress (the idea being that during that Session, the Senate would have the opportunity to confirm the appointment).

Set all the legalese and mumbo-jumbo you may have read aside, because this ain't rocket science. It's easily understood, a very basic and necessary power granted to the President for purposes of expediency, not as a means of circumventing the Senate.

Yet, the slow and steady abrogations of these limits by leaders of the Executive Branch has led to the current state of affairs, where this power is used arbitrarily to avoid the confirmation process for one reason or another. During the tenure of President George W. Bush, Senator Harry Reid used a "trick" to prevent Bush from making a number of recess appointments (which Bush really shouldn't have been making, anyway): he kept the Senate technically in session by calling it to order every three days, even if no quorum was present (the so-called pro-forma session). And this trick worked; President Bush did not choose to break tradition, to violate the rules, so he abstained from making recess appointments during pro-forma sessions.

Enter the legal scholar, President Barack Obama.

In 2012, President Obama decided to go ahead with some recess appointments, even though the Senate was technically in session (a pro-forma session), maintained by yet another trick from House leader John Boehner, who would not allow a vote to end the Congressional Session in the House--and thereby forced the Senate to remain in session--over the winter break. He did so based on a rather lame legal opinion from Justice which argued pro-forma sessions were not "real" sessions and therefore did not actually interrupt intrasession recesses.

Now there has been an ongoing debate on the issue of intrasession versus intersession recesses of Congress, mostly specific to the issue of recess appointments. Understand the distinction: an intrasession period is a break during a single, continuous Session of Congress, while an intersession period is a break between actual called Sessions. I've explained all of this previously, so I'll just quote myself in this regard:
An intrasession period is--by definition--a break during a called session of Congress. Traditionally, each Congress meets for two sessions, one each year, for this is the minimum number of meetings mandated by the Constitution in Article I, Section 4... 
The Twentieth Amendment subsequently changed the above date to January 3rd. Thus, Congress must be called into session once each year. But when does such a session officially end? Simple, when Congress votes to end it. To do so, it (each House, actually) votes for an Adjournment sine die (meaning an adjournment without a designated date of return). But note this: there is no limitation on how many individual sessions a particular Congress can hold, as long as it has an adjournment sine die. Rather than hold multiple sessions a year, Congress has opted to simply adjourn for breaks of various lengths at different times during the year. Such breaks could be--and still often are--quite long, particularly during election years (got to have time to campaign, after all). 
Thus, intrasession periods have ranged in length from a handful of days to multiple weeks. In the more distant past of the nation--prior to World War II--such periods were almost never used by the President to make recess appointments (three times over at least 80 years). And that's because they were understood to not be the periods for doing so, per the Constitution.
The three judge panel of the Court of Appeals correctly ruled that the Constitution only permitted recess appointments during intersession periods, not intrasession ones. Why? Because any break in a called session is technically an intrasession one. Thus, if Congress adjourns for the day, or for lunch, or even for a bathroom break, an intrasession period occurs. To suppose that during such periods the President should be permitted to make recess appointments is to essentially ignore the text and intent of the Constitution, especially since only those vacancies that occurred during the recess period can be filled.

The ruling was a huge slapdown to Presidential power in general and the Obama Administration in particular. And of course, the know-nothing fanboys on the Left reacted to the decision with outrage, calling the decision "radical" and the like. To bolster their claims, they--and the Obama Administration--point out how common such appointments have been in the recent past, but noticeably ignore the more distant past and the actual text of the Constitution.

What happened here, with this decision of the Court of Appeals, is that an unconstitutional practice, engaged in by members of both major parties, was simply ended. There was nothing radical about the decision at all. As I noted in my previous piece, the decision is exactly in line with the thinking of former Senator Ted Kennedy--and many others--who have been pointing out this specific violation of the Constitution for decades.

That said, the pro-forma sessions are indeed being wrongly used for political purposes. This was true when Harry Reid was using them against Bush (and Obama was supporting their usage then, by the way) and it was still true when Boehner turned the tables and used them--or at least tried to--against Obama. But President Obama is not a king or a dictator (I don't think he is, at any rate). He did not have the authority--according to the Constitution--to make the appointments to the NLRB, pro-forma session or no pro-forma session, because the vacancies did not occur during the recess in which they were made and that recess was not an intersession period, regardless.

Hopefully, SCOTUS will do the right thing here and confirm the ruling from the Court of Appeals, because it is 100% correct.

Cheers, all.

No comments:

Post a Comment