The Magazine

After the Filibuster

The coming war over presidential appointments

Feb 24, 2014, Vol. 19, No. 23 • By TERRY EASTLAND
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The Senate had adjourned on December 17 under a unanimous consent agreement providing that it would “convene for pro forma sessions only, with no business conducted,” every three days (not counting holidays) from December 20 through January 20, adjourning at the end of each pro forma session. The Senate duly convened the sessions, using two of them to conduct business, and adjourning them as mandated.

As defined by the Congressional Research Service, pro forma sessions are “short meetings of the Senate or House held for the purpose of avoiding a recess of more than three days and therefore the necessity (under the Adjournments Clause) of obtaining the consent of the other House.” The intention with such sessions is not to do business, though sometimes business is done. In their typical form, a senator gavels in the session and after a short while gavels the session out.

Since the 1850s the Senate has used pro forma sessions on many occasions and for various purposes, including, in recent decades, to preserve its advice-and-consent authority. When Obama made his appointments on January 4, 2012, that was one day after a pro forma session had been convened and two days before the next one was scheduled to take place. Obama thus became the first president to attempt to make midsession recess appointments during a three-day break in Senate business.

The inevitable lawsuit challenging the president’s unilateral actions was one filed against the appointments to the NLRB. On February 8, 2012, a three-member panel of the board affirmed an administrative law judge’s ruling that Noel Canning, a family-owned soft drink bottling and distribution company in Yakima, Wash., had refused to implement a collective bargaining agreement allegedly reached with its workers’ union. The company sought to have the ruling voided, contending that the NLRB lacked a quorum for its decision, and indeed could not have had one, since only the two members already sitting at the time of Obama’s January 4 appointments had been lawfully appointed.

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia, where NLRB rulings are initially reviewed, unanimously decided in favor of Noel Canning. Now on appeal to the Supreme Court, with the oral argument having taken place last month, the case is one the administration seems likely to lose.

Constitutional text and structure, as well as original understanding and historic practice, support Noel Canning’s argument that the president may make unilateral appointments only during “the Recess,” which takes place between numbered “Sessions” of the Senate, and not, as the administration contends, during every short break within a session. The same considerations also support the company’s argument that the president may make recess appointments only to fill “Vacancies that may happen during the Recess”—and not also, as the administration says, vacancies that preexist the recess. The D.C. circuit agreed with those interpretations of the constitutional terms, and hence Noel Canning prevailed. 

However, there is also this: Since the Truman administration, presidents of both parties have invoked the recess appointments clause to fill not just vacancies that happened during the intersession recess, but also vacancies that arose when the Senate was still in session. Moreover, they have made unilateral appointments during not only intersession recesses but also “intrasession recesses”—those occurring within a session (yet until Obama, never during a three-day break).

Noel Canning thus is a case in which the original understanding of the Constitution and modern practice are in conspicuous tension. That is what animated Justice Antonin Scalia during the oral argument to ask Solicitor General Donald Verilli Jr., “What do you do when there is a practice that .  .  . flatly contradicts a clear text of the Constitution?” Verilli replied, “I think the practice has to prevail, Your Honor,” though he also suggested that the text was not so clear.

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