The U.S. Supreme Court heard oral arguments Monday regarding the constitutionality of President Obama’s recess appointments to the National Labor Relations Board.
Obama selected Richard Griffin Jr., Sharon Block and Terence F. Flynn to the NLRB without congressional approval January 4, 2012. The appointments provided the NLRB with the quorum needed to vote.
Article II Section II of the Constitution stipulates:
“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.”
However, at issues is whether or not the Senate actually was in recess. SCOTUS recounts:
The day before the appointments – January 3, 2012 – Congress had technically begun the second session of the 112th Congress, but the Senate had quickly adjourned, and most senators left town.
However, the Senate did hold several very brief sessions. These are known as “pro forma” sessions, because little or no work was accomplished. Instead, usually one senator would come into the Capitol and convene the Senate for a short time before then adjourning it again. The whole point of these brief periods of business is an attempt to limit the length of time that the Senate is deemed to be in “recess.”
The U.S. Court of Appeals for the District of Columbia already ruled the appointments “constitutionally infirm” because they were not made during the “the Recess of the Senate.”
The president cannot, it explained, make them during intra-session breaks like the one that occurred in January 2012, when the second session of the 112th Congress had already begun.
The court also ruled that even during an inter-session recess, the president cannot use his recess appointment power to fill a vacancy that already existed before the recess. Instead, he can only make recess appointments to fill vacancies that were created during the recess.
Alexander Hamilton pointed to the cooperation between the Senate and President in such appointments as an "excellent check upon a spirit of favoritism in the President" that would "tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity."
President Obama's questionable interpretation of the Constitution has not been confined to these appointments. Washington Post writer George F. Will dubbed "Obama's unconstitutional steps worse than Nixon's."
NLRB v. Noel Canning presents an important opportunity for the Court to rein in the growing power of the executive branch and foster the stable practice of checks and balances between government branches.
UPDATE: The Court heard more than 90 minutes of oral arguments with only Justices Ruth Bader Ginsburg and Sonia Sotomayor seeming to support the president’s unilateral appointments, according to SCOTUS.
Senator Mike Lee (R-Utah) said outside the Court he expects the previous ruling against the appointments to stand:
“The solicitor general’s arguments were not, in my opinion, well received.”