The current spectacle of government dysfunction in Washington could scarcely be worse, right? Wrong, actually—because a case now before the Supreme Court might create an entirely new level of gridlock and inaction. The budget deadlock has frozen the current operations of existing government agencies, but the case before the Justices will determine whether some of these agencies will exist at all.
On the surface, National Labor Relations Board v. Canning concerns an arcane issue—the scope of the President’s constitutional power to make appointments while the Senate is in recess. But the case is actually immensely important, because it addresses the ability of the President—especially this President—to exercise the basic responsibilities of office in the face of flagrant obstruction by the Senate. (I’ve written about this case before. O.K., I admit I’m kind of obsessed.)
Many of the President’s most important powers come from his ability to appoint the members of quasi-independent agencies, like the Securities and Exchange Commission, the Federal Trade Commission, and the National Labor Relations Board. All of the President’s appointments to these bodies are subject to approval by the Senate. This case concerns what happens when the Senate refuses to take up-or-down votes on the President’s appointments. If the Senate refuses to vote on a President’s nominees, how can the President fight back?
This is far from a merely theoretical issue. Since Obama became President, Republicans in the Senate have engaged in unprecedented obstruction of his nominees to these agencies. Worse, Republicans have been able to thwart the President even though they have been in the minority. Filibusters (once extraordinary measures) have become routine in the contemporary Senate, so as few as forty senators can prevent any nominee from coming up for a vote.
In response, Obama has done what any number of his predecessors have done—make recess appointments. This power reflects the eighteenth-century origin of the Constitution. At the time of the framing, it took members of Congress many days or even weeks to travel to the capital (then Philadelphia) to attend congressional sessions. The authors of the Constitution had to come up with a mechanism so that the President could keep the government running during the long periods when Congress was not sitting—when Congress was in “recess.” So, during recesses, the President was given the unilateral power to fill vacancies for the remainder of the congressional session.
Fast-forward a couple of centuries to the era of senatorial obstruction. As I noted in my earlier piece, all Presidents in the modern era have used recess appointments to fight back against a Senate that refuses to act. The question raised by the Canning case is what counts as a recess. In any realistic sense, it’s actually a pretty silly dispute. There really is no need for senatorial recesses at all anymore. Today, every senator is no more than a few hours away from Washington. Recesses are legacies of the horse-and-buggy era.
But the issue is enormously important, and the National Labor Relations Board shows why. Republicans have always loathed the N.L.R.B., but, before Obama, a Democratic President’s nominees were almost always either confirmed or rejected. Not anymore. Wielding the filibuster, Republican minority in the Senate refused to allow the confirmation votes on Obama’s nominees to the N.L.R.B. The President responded with recess appointments. As has been customary in recent years, some of those recesses were between congressional sessions and some were brief recesses during sessions. The Noel Canning company argued that the Constitution did not recognize intra-session recesses but, rather, only inter-session recesses.
A conservative panel of the United States Court of Appeals for the District of Columbia Circuit ruled against the Obama Administration, declaring that intra-session recess appointments (like several to the N.L.R.B.) were invalid. Most important, the Court ruled that all actions taken by these recess appointees were invalid. This meant that more than a thousand N.L.R.B. decisions were suddenly declared null and void.
If the ruling by the D.C. Circuit is upheld, the result will be a massive shift of power from Presidents to Senate minorities. Forty senators will have the power to stop an agency from functioning. Given the general political inclinations of the contemporary G.O.P., this would be a tremendous victory. They don’t want an N.L.R.B. at all, and they don’t care for most other regulatory agencies, either. The D.C. Circuit decision is more than a gift of a minority veto on individual members of a commission; it’s a minority veto on the very existence of venerable federal agencies.
The Canning case brings together several themes of recent political life: fierce congressional obstruction of President Obama, aggressive use of the courts by conservative activists, precedent-shattering rulings by conservative judges to undo the work of the democratically elected branches of government. As with so many of these struggles during the Obama era, the outcome is far from certain. A decision is expected by next June.
Above: Richard Cordray, who became the director of the Consumer Financial Protection Bureau via a recess appointment, testifies before the Senate Banking Committee. Photograph by Brendan Hoffman/The New York Times/Redux.
