Justices Show Reluctance to Allow Recess Appointments

, New York Law Journal

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WASHINGTON - The U.S. Supreme Court on Monday, in a classic clash between the Constitution's text and presidential tradition, struggled with which of the two should prevail in a challenge to President Obama's recess appointments to the National Labor Relations Board.

National Labor Relations Board v. Noel Canning, 12-1281, 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."

At the end of more than 90 minutes of argument, the government, represented by Solicitor General Donald Verrilli Jr., appeared to face an uphill battle in persuading the justices to reverse a broad ruling by the U.S. Court of Appeals for the D.C. Circuit limiting a president's power.

During the arguments, 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Mitch McConnell and other Senate Republicans—offered competing interpretations of the language in the clause and of historical documents by the Constitution's framers.

See Argument Transcript and Briefs filed in the case.

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. 554 U.S. 570. 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 Justice Antonin 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.

Obama had appointed the three board members on Jan. 4, 2012. The Senate had adjourned immediately after the start of the second session of the 112th Congress on Jan. 3, 2012, but had agreed to reconvene for a series of three-day pro forma sessions, "with no business conducted" between Jan. 3 and Jan. 23, 2012. The president viewed that period as a recess.

The D.C. Circuit held that "the Recess" of the Senate, for purposes of recess appointments, lies only between the biannual sessions of Congress. It also held that the only vacancies to be filled during the recess are vacancies that actually occur during the recess, and not existing vacancies.

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