On the surface, the decision of the judges in the case of Noel Canning v. NLRB to declare invalid the January 4, 2012 appointments of Democratic members Richard Griffin and Sharon Block and Republican member Terrance Flynn (who have since resigned) may appear to be “ground breaking” but given that they were made by three Republican Judges, it’s not that, as much as it is partisan politics, writ large.
But first, Article II, Section II of the U.S. Constitution states that “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.”
But before we go to the political problem, let’s look at where the case turned: on the appointment of the three temporary board members – done to shore up a massive caseload problem at the NLRB, and made during a Senate recess. The United States Court of Appeals, DC Circuit said that the NLRB never determined what a “recess” was. The idea critics have is that the time of Obama’s appointments wasn’t really a Christmas holiday recess.
Indeed, the DC Circuit Court writes “At the time of the President’s purported recessappointments of the three Board members, the Senate was operating pursuant to a unanimous consent agreement, which
provided that the Senate would meet in pro formasessions every
three business days from December 20, 2011, through January
23, 2012. 157 Cong. Rec. S8,783–84 (daily ed. Dec. 17, 2011).
The agreement stated that “no business [would be] conducted”
during those sessions. Id. at S8,783. During the December 23
pro forma session, the Senate overrode its prior agreement by
unanimous consent and passed a temporary extension to the
But as we will learn, that has nothing to do with what the U.S. Senate says is a recess for its purposes. Under that definition, a recess could have occurred during that period of special operation.
Moreover, the problem is that the appointments were made, but then the court said that because they were not valid (under that court’s view) their was no quorum. That reads as reverse logic – if the appointments were made, then they’re valid. To determine that after the fact seems pointless.
But the main point of this case is when is a recess appointment just that. The DC Circuit Court decision doesn’t invalidate every recess appointment President Obama has made and any report asserting such is totally irresponsible.
In this case, the argument was that the Senate was not in recess because of a special set of meetings on tax reform.
What’s troubling about the U.S. Circuit Court’s decision is it totally ignores the U.S. Senate’s own stated definition of what a recess is .
recess – A temporary interruption of the Senate’s proceedings, sometimes within the same day. The Senate may also recess overnight rather than adjourn at the end of the day. Recess also refers to longer breaks, such as the breaks taken during holiday periods, pursuant to concurrent resolution.
Thus, the court would seem to have incorrectly determined what a Senate recess is, preferring to dig up every other meaning of the term, other than the one that applies to The U.S. Senate. Moreover, it’s the one that was in effect when the temporary appointments were made last year.
Again, the DC Circuit Court failed to look at the U.S. Senate definition of recess.
And now we come back to the fact that the DC Circuit consists of Republican judges. It calls into question the validity of their decision. If a mix of Democratic and Republican judges were on the DC Circuit in this case, it’s fair to say that a more balanced view would have prevailed, and not one that seemed bent on curtailing the President’s power, even above the reasoned review of the case.
Prediction: Obama wins on appeal.