Noel Canning and Recess Appointments
Given my view of the case (that the President’s recess appointments to the NLRB were invalid because the Senate was not in recess when they were made), I was pleased with how the argument went today. In particular, I thought that Justice Breyer’s point that the Recess Appointment Clause was not meant to resolve political disputes was spot on.
One additional thought. Some of the Justices expressed the concern that if the Senate gets to define what a recess is (which is my view) then the Senate can end all recess appointments. I think that is correct and not at all a bad thing. As I said in this essay on SCOTUSBlog a few months ago:
“The upshot of this analysis is that the Senate can block all recess appointments if it is so inclined. Some may see this as an intolerable limit on the President’s authority, but in reality this just gives the Senate another bargaining chip to use in its perpetual negotiations with the executive branch. The Senate would be shooting itself in the foot by adopting the position that the President could never make a recess appointment no matter what he offered in return.
In this case, the Senate held pro forma sessions for the specific purpose of preventing the President from making any recess appointments. As a result, there is no doubt about what the Senate’s view of whether it was in a recess – it was not. The decision to undertake these pro forma sessions was especially noteworthy given that it was bipartisan, which is a precious commodity these days. There is no persuasive argument that these sessions could not be held under the Senate rules or that pro forma sessions fly in the face of the Senate’s traditional view of what a recess is. Accordingly, the D.C. Circuit’s judgment (i.e., that the recess appointments to the National Labor Relations Board were unlawful) should be affirmed, but the reasoning of the panel opinion should be repudiated.”