Supreme Court Skeptical of President's Recess-Appointments Argument

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Miguel Estrada
Miguel Estrada

The Obama administration appeared to face an uphill battle on Monday in persuading the U.S. Supreme Court to reverse a broad ruling by the U.S. Court of Appeals for the D.C. Circuit limiting the president's power to make recess appointments.

Solicitor General Donald Verrilli Jr. told the justices that D.C. Circuit’s interpretations of the clause "would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington and, going forward, it would diminish presidential authority in a way that is flatly at odds with the constitutional structure the framers established."

Justice Antonin Scalia asked hypothetically, "What do you do when there is a practice that flatly contradicts a clear text of the Constitution? Which of the two prevails?"

Verrilli responded that the practice has to prevail, but before he could finish, Scalia interjected: "So if you ignore the Constitution often enough, its meaning changes?"

And so it went during 90 minutes of oral arguments in a classic clash between the Constitution's text and presidential tradition arising from President Obama's recess appointments to the National Labor Relations Board.

National Labor Relations Board v. Noel Canning is, surprisingly, the first time the high court has examined the meaning and scope of the recess-appointments clause in the Constitution. That clause states: "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."

Verrilli and his two opponents—Jones Day's Noel Francisco, counsel to Noel Canning, and Gibson, Dunn & Crutcher's Miguel Estrada, representing Senate Republican Leader Mitch McConnell and other Senate Republicans—offered competing interpretations of the language in the recess-appointments clause and of historical documents by the Constitution’s framers.

The arguments were reminiscent of another recent case in which the justices wrote on almost as clean a slate—the Second Amendment challenge to the District of Columbia's gun ordinance in 2008's District of Columbia v. Heller. Conflicting views of that amendment's text and history also dominated the justices' deliberations and final decision.

And, as in the gun case, the recess clause arguments exposed a divide among the justices on their approaches to constitutional interpretation. Questions from Scalia, a self-described originalist, revealed his strong belief in the original meaning of the words. Pragmatists, such as justices Sonia Sotomayor, seemed more skeptical of that approach, given the long tradition of recess appointments made contrary to the D.C. Circuit's interpretation.

Noel Canning, a Yakima, Wash.-based soft drink bottler, had appealed a decision by the labor board that the company had committed an unfair labor practice during contract negotiations with its union. In its appeal to the D.C. Circuit, the company argued that the board had no authority to make its decision because the recess appointments of three of its members, necessary for a quorum, were invalid.

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    Recess appointments are obsolete. With jet travel and instant telecommunications, the Senate is never unable to advise and consent -- barring catastrophes such as full-scale war, electomagnetic storm, major asteroid strike, etc. Besides, requiring presidents to confer with Senators before nominating appointees will appropriately assure the citizenry that communists and facists never get within 10 miles of real power.

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