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In Noel Canning, Another Unanimous Defeat For Claims Of Unchecked Power

10:05 AM, Jun 27, 2014 • By ADAM J. WHITE
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Two and a half years ago, President Obama tired of the Senate's refusal to confirm several of his nominations. Dissatisfied with the Constitution's general requirement that the president make appointments only after receiving the Senate's "advice and consent," he chose a more direct route. He declared the Senate to be in recess, and then purported to "recess" appoint four officers: the inaugural director of the new Consumer Financial Protection Bureau, and three members of the National Labor Relations Board.

US Supreme Court

The president offered a simple reason for nullifying the Senate's constitutional power: "I refuse to take no for an answer."

But the Supreme Court made clear yesterday that the answer is still "no," and this time he'll have to take it.

The Court unanimously rejected his recess appointments, in NLRB v. Noel Canning. All nine justices—even the president's own appointees, including his own former solicitor general—agreed that the president's appointments were unconstitutional. To the extent that the justices disagreed among themselves, it was only on how unconstitutional the appointments were.

Justice Stephen Breyer wrote for the Court's five-justice majoritynamely, the Court's four liberals and Justice Kennedy—holding that the Senate plainly had not been in "recess" when the appointments occurred. The Senate itself had declared itself to be in session, convening "pro forma" sessions every three days. (This was a tactic devised by Senate Democrats several years ago, to prevent President Bush from making recess appointments.) During those sessions, the Senate remained fully capable of conducting official business—indeed, in the same series of "pro forma" sessions, the Senate approved President Obama's payroll tax cut extension.

To be clear, the majority opinion leaves substantial room for future recess appointments. It affirms the president's power to make recess appointments not only during the "inter-session" recess between Congress's two-year sessions, but also during "intra-session" recesses throughout the year. And it affirms the president's power to use recess appointments to fill vacancies existing prior to the recess. The Court's four conservatives, in an opinion written by Justice Scalia, rejected both of those points.

Yet even Justice Breyer's majority opinion drew a few stark lines. A recess must be greater than three days long. That number corresponds to the Constitution's prohibition against the Senate adjourning for more than three days without the House's consent. As Breyer explains, "a Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President's recess-appointment power."

The Court's majority further explains that a break of more than three days but less than ten days is "presumptively" not a recess. The ten-day standard is rooted not in constitutional text but, rather, in roughly a century of practice, in which the president declined to make recess appointments in adjournments of less than ten days. Thus, the Court would allow the president to make recess appointments in this small window only in "very unusual circumstances" in which the Senate truly is incapable of meeting to conduct its business—"a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response."

Again, Justice Scalia and the other three conservatives would have been even stricter. And Scalia strongly criticized the majority for basing so much of its decision on inferences drawn from a history of conflict between the president and the Senate, effectively ratifying what Justice Scalia sees as the president's slow encroachments upon Senate power. Scalia disagreed strongly with the notion that these constitutional issues should be decided on the basis of considerations other than  constitutional text.

Indeed, Scalia's opinion vigorously rejects the notion that the Senate could concede any power to the president in these matters, since the Constitution's system of checks and balances exists not to protect the Senate, but the people:

This Court does not defer to the other branches’ resolution of such controversies; as Justice Kennedy has previously written, our role is in no way “lessened” because it might be said that “the two political branches are adjusting their own powers between themselves.” ... Since the separation of powers exists for the protection of individual liberty, its vitality “does not depend” on “whether ‘the encroached-upon branch approves the encroachment.’” ... Rather, polic­ing the “enduring structure” of constitutional government when the political branches fail to do so is “one of the most vital functions of this Court.

In that discussion, Justice Scalia explicitly focused on Justice Kennedy's past opinions, listing them by name in citations I've omitted from the quote. His focus on Kennedy is striking. Most likely, Justice Scalia focused on Justice Kennedy's past writings on constitutional structure simply because Kennedy's track record is so strong on that point, and Scalia was frustrated by Kennedy's failure to strongly protect that structure here.

But perhaps Scalia's focus on Kennedy has even more immediate roots. Perhaps Justice Scalia singled Kennedy out because Kennedy himself is promoting those themes in a yet-unreleased opinion in the Hobby Lobby religious liberties case, due to be decided next week. (I admit, this second theory is probably just wishful thinking, since I've previously suggested that Justice Kennedy might pursue those themes in Hobby Lobby.)

But again, these limited disagreements among the Court's nine justices must not overshadow the fact that all nine of them found President Obama's actions unconstitutional. That is a remarkable outcome, but hardly an unprecedented one: as Senator Cruz has documented, the Court unanimously rejected the administration's legal positions eleven times before Thursday.

The administration's failure to garner even a single vote might owe to the fact that the administration boldly refused to concede any limit on its recess-appointment authority, in terms of the minimum number of days needed to constitute a "recess." In the Justice Department memo defending the recess appointments, the office of legal counsel stressed in a footnote that it had never conceded any such limit. At oral argument, the solicitor general hedged only slightly—he suggested that three days might be the minimum for a constitutional "recess," but even then he insisted that the president must have complete power to decide whether the Senate is actually in recess, or whether the Senate's "pro forma" sessions are not real sessions. The administration simply refused to back away from its controversial assertion of power to make binding judgments as to Senate procedure.

This is not the first time the administration refused to identify a "limiting principle" preventing its argument from slipping into absurd results. The Obamacare individual mandate litigation was dominated by concerns that the administration's broad view of the Commerce Clause had no limiting principle. In Citizens United, the administration's claim of the power to not merely ban videos but also to ban books caused the case to take a decisive turn against it.

Absolute power corrupts absolutely. And claims of absolute power tend to corrupt the administration's legal arguments, absolutely. It is a lesson that the administration has refused to learn. And even after suffering such a decisive loss yet again, the administration still might not learn it.

After all, I hear that the president doesn't like to take no for an answer.

Adam J. White is a lawyer in Washington, D.C. Full disclosure: He is co-counsel in a  lawsuit challenging CFPB Director Cordray's recess appointment, as well as the constitutionality of the CFPB's structure. And his firm filed an amicus brief in the Noel Canning case.

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