January 13, 2014

TODAY: High Drama At The The Supreme Court.

The Supreme Court will hear oral arguments on the case of National Labor Relations Board v. Noel Canning. It is a very important case, which is why the court is allowing 90 minutes of oral argument instead of the usual sixty. You can find the legal background here on the indispensable www.scotusblog.com, which will be live-blogging the argument tomorrow morning.

On December 13, 2011, President Obama nominated two people to the National Labor Relations Board, just days before Congress adjourned for the holidays. On January 4, 2012, even before Congress had really opened for business for its second session, which began January 3, he gave them recess appointments to the board. The power to do this is in Article II, Section 2: “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.”

The original purpose of this provision was to provide a means, at a time when travel was extremely slow and the Senate was likely to be out of session for months at a time, of appointing federal officials temporarily to carry on the business of the government when the Senate was unavailable to confirm the appointment. But presidents had increasingly been using it when the Senate refused to have an up-or-down vote on a nominee, installing the nominee when the Senate had recessed sometimes for only a few days. No one seriously challenged a president’s constitutional right to do so. Indeed, in 2007, the Senate, under Majority Leader Harry Reid, had begun holding pro-forma sessions every couple of days precisely to deny President George W. Bush the power of making recess appointments.

But Obama struck when the Republicans tried to do the same after they took the House in 2010. By having the House not adjourn, the Senate was prevented from doing so as well under Article I, Section 5. Obama simply declared the Senate not to be in real session and made the recess appointments, even though the Senate, far from lollygagging on the confirmation process, had not even had time to have the nominees—nominated less than three weeks earlier and with the holidays intervening—vetted by the FBI or to schedule a committee hearing on them. (Why did the president wait until January 4, and not just appoint them the instant the Senate began holding pro-forma sessions in mid-December? Simple: By waiting until January 4, when the next session of the Senate had officially begun, he secured their positions until the end of 2013 instead of just until the end of 2012.)

When a company named Noel Canning subsequently lost a decision at the NLRB, it sued, claiming the board was illegally constituted. The D.C. Circuit Court agreed a year ago.

Read the whole thing. I’m conflicted, because I’d love to be a recess appointment to the Supreme Court. Like being appointed to fill an unexpired term in the Senate, it’s the only way I’d ever make it, and I think I’d last just about as long as I could enjoy it. . . .

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