The Supreme Court today effectively eliminated the president’s power to make recess appointments in all but the most unusual circumstances, with four justices going even further with an opinion that could have retroactively invalidated thousands of recess appointments made by presidents past if it had garnered just one more vote. Thursday’s opinion in National Labor Relations Board v. Noel Canning is a defeat for President Obama, who made the recess appointments that are now invalid under the Court’s decision. But the greatest effects of this opinion will not be felt until long after Obama leaves the White House. Thanks to Noel Canning, the country will likely face a pitched battle every five years that poses an existential threat to unions every time it is waged.
Prior to Noel Canning, the law governing recess appointments was surprisingly underdeveloped, and the highest legal authority to weigh in on the question confirmed that President Obama did indeed have the power to make these appointments. In order to defeat any attempts to make such appointments, the Senate held brief, sham sessions known as “pro forma” sessions every three days — on the theory that these sham sessions were sufficient to keep the Senate out of recess and prevent President Obama from making appointments. When President George W. Bush was in the White House, however, a federal appeals court held that “[t]he Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.” Thus, at the time that Obama made these appointments, they appeared to stand on fairly firm legal ground.
Relying on lower court precedents and other authorities less powerful than the Supreme Court of the United States, however, is a dangerous game. The White House learned today how dangerous this game came be. Every single justice voted against their recess appointments today, although the Court split 5–4 on rationale.
It’s important to understand why President Obama took this risk. The three recess appointments invalidated today were placed on the National Labor Relations Board (NLRB), a government agency with exclusive authority to enforce much of federal labor law. NLRB members serve five year terms, and unless at least three seats on the board are occupied, it is powerless to act. This set up a situation where the Board was about to drop below the minimum number of members it needed to operate, and Senate Republicans could keep it closed indefinitely by filibustering President Obama’s nominees (this was before Senate Democrats triggered the so-called “nuclear option” that eliminated most filibusters of presidential nominees).
As ThinkProgress previously explained, allowing the NLRB to go dark would have catastrophic consequences for many workers:
If the NLRB is powerless to act, there will be no one to enforce workers’ rights to join a union without intimidation from their employer. No one to enforce workers’ rights to join together to oppose abusive work conditions. And no one to make an employer actually bargain with a union. Without an NLRB to enforce the law, it may be possible for an employer to round up all of their pro-union workers, fire them, and then replace them with anti-union scabs who will immediately call a vote to decertify the union.
The meat of Justice Stephen Breyer’s opinion for the Court establishes that “for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.” In this case, the pro forma sessions were enough to frustrate President Obama’s recess appointment’s power.
The practical effect of this decision, however, is that the recess appointments’ power is almost entirely dead. For the moment, that will not matter much, because the president’s party also controls the Senate and, after the filibuster reforms put in place last November, a bare majority of the Senate can confirm anyone other than a Supreme Court nominee. Come next year, however, if Republicans control the Senate, than the implications of Noel Canning should be obvious. Senate Republicans will be able to block anyone Obama nominates to any Senate-confirmed job, and Obama will be powerless to do anything about it.
The fullest impact of this decision, however, will likely be felt in 2018. That’s when the five year terms of the NLRB’s current slate of members expire. If an anti-union president controls the White House in 2018, they will be able to effectively invalidate labor protections that have existed since the Franklin Roosevelt Administration by refusing to nominate anyone to this Board. But even if the president supports allowing federal labor law to function in 2018, they will be unable to keep the NLRB functioning if a majority of the Senate is determined to shut down federal labor protections. That is the most important impact of Noel Canning. It means that every five years the Senate will have the unilateral authority to turn off decades of protections for American workers.
This is, needless to say, a significant shift in the balance of power between the Executive and the Legislature. As a general rule, the Constitution requires both houses to pass a bill repealing a law, and it requires the president to either sign the bill or have their veto overridden by supermajorities of both houses. After Noel Canning, however, the Senate will be able to effectively repeal longstanding labor laws (although those laws will be reactivated if NLRB members are ever confirmed again).
In fairness, Justice Breyer’s opinion does note one circumstance that may still allow the president to make a recess appointment in the face of a recalcitrant Senate. The Constitution provides that “in the case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such time as he shall think proper.” This means that, in a theoretical circumstance where the House wishes to allow recess appointments but the Senate does not, the House may be able to force a situation where the Senate goes into recess.
Yet there are two practical obstacles to this maneuver. The first is that, as Tom Goldstein notes, “[a]lthough the President can adjourn the Congress if the two houses of Congress cannot agree when to adjourn, I’m not aware of that power ever being exercised, so it’s untested.” As the Noel Canning opinion demonstrates, the president walks upon treacherous ground when they push their recess appointments power — even when they appear to have legal support for their position.
The second obstacle is that, thanks to gerrymandering and other Republican advantages baked into the redistricting process, the party that is most likely to be hostile to union rights also has a strong advantage in U.S. House elections — at least for the near to medium-term. So even if the House has a theoretical means to push back against a recalcitrant Senate, it is likely to be unwilling to do so when the time comes.