Over the past several decades, as the Senate confirmation process has become increasingly contentious, presidents have tested the boundaries of their constitutional authority to make appointments while Congress is in recess. But this week, the U.S. Supreme Court announced it would consider whether President Obama went too far in making several appointments in 2012, providing justices with an opportunity to clarify and limit a presidential power run amok.
The U.S. Constitution stipulates, "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." But what constitutes "recess"? How long does it have to be? And when do vacancies have to arise to become eligible for recess appointments? Courts have never adequately resolved these questions. As a result, Republicans and Democrats have engaged in a long tit for tat over presidential recess appointments, typically changing their positions based on which party controlled the White House.
President Clinton made 139 recess appointments, according to the Congressional Research Service, and President Bush made 171. But after Democrats took control of the Senate in 2007, Majority Leader Harry Reid held "pro forma" work days of the Senate every three days, in which one Senator gaveled the chamber in and out within seconds to effectively block recess appointments.
Obama had made 28 recess appointments by the time Republicans regained control of the House of Representatives in 2010. But because another provision of the Constitution requires that each chamber of Congress obtain the consent of the other chamber to adjourn for more than three days, the GOP House forced Reid to resurrect the "pro forma" sessions to block Obama from making further recess appointments.
Then, on January 4, 2012, while the Senate was in "pro forma" session, Obama made three appointments to the National Labor Relations Board and also appointed Richard Cordray to head the Consumer Financial Protection Bureau. When the newly stacked NLRB ruled against Noel Canning, a Yakima, Wash.-based bottler, in a union dispute, the company filed suit, arguing that the board lacked the necessary quorum to make a decision because three of its members were unconstitutionally appointed by Obama.
In January, the U.S. Appeals Court for the D.C. circuit not only invalidated Obama's NLRB appointments made during the "pro forma" session, but argued for a very narrow definition of presidential recess appointment power.
In its decision, the court ruled that because the U.S. Constitution refers to "the recess" rather than just any recess, the Founders were referring specifically to the yearly break between sessions of Congress, as opposed to the breaks that routinely occur throughout the year, such as the upcoming July 4th break. The decision also argued that appointments could only be made to vacancies that came up during that one single recess, rather than at any point during the year.
"At the time of the Constitution, intersession recesses were regularly six to nine months ... and senators did not have the luxury of catching the next flight to Washington," according to the D.C. circuit opinion. Therefore, the Founders intended for recess appointments to be used to prevent the federal government from being paralyzed for months if the Senate could not gather to approve nominees to positions that unexpectedly opened up while they were out of town. It was not meant to be a tool for frustrated presidents to bypass the Senate when they cannot get their preferred nominees confirmed.
By agreeing to take up the case, the justices of the Supreme Court have a chance to limit usage of recess appointments to their original constitutional purpose.