Supreme Court will hear dispute over presidential appointments


McClatchy Washington Bureau

A routine labor dispute at a soft drink bottling company in Yakima, Wash., has now bubbled up to the Supreme Court, posing a serious challenge to presidential powers.

In a longer than usual oral argument Monday, justices will weigh the appointments that presidents can make during a Senate recess. It’s a unique civics test that has drawn the interest of politicians, states and business leaders, not to mention constitutional scholars of all stripes.

“On its face, it looks like a little tool, this tool about recess appointments,” Nicholas Rosenkranz, a professor at the Georgetown University Law Center, said at a Federalist Society briefing, “but . . . it shifts the balance of power, because appointments are a big bargaining chip.”

The case is specifically important for Yakima-based Noel Canning and the National Labor Relations Board, whose members are appointed by the president. It’s also crucial for hundreds of other companies that have a beef with the NLRB. More broadly, the case could tilt future relations between Congress and the White House.

Underscoring the stakes, 45 Republican senators led by Senate Minority Leader Mitch McConnell of Kentucky have been allotted additional time during the 90-minute oral argument.

Senators “have a powerful stake in ensuring that the executive’s claim of power to make appointments unilaterally, which the (Constitution’s) framers deliberately withheld, is repudiated,” attorney Miguel Estrada wrote in a brief on behalf of the GOP senators.

A family-owned firm that’s part of the larger Noel Corp., Noel Canning ran afoul of the NLRB in February 2012, when the board upheld an administrative judge’s ruling against the company in a contract dispute with Teamsters Local 760.

Two of the three labor board members ruling against Noel Canning, Democrat Sharon Block and Republican Terence Flynn, had been appointed by President Barack Obama in January 2012. They had not, however, been confirmed by the Senate.

Instead, facing Senate Republicans’ intransigence, Obama gave recess appointments to the two nominees. The Constitution authorizes presidents to make such appointments “during the Recess of the Senate, which shall expire at the end of their next session.”

Senate Republicans have joined Noel Canning in challenging the appointments’ legitimacy. So have South Carolina and 16 other right-to-work states, where conservative officials are unhappy with some NLRB decisions. If the challengers win, any NLRB decisions made by Block and Flynn would be cast into doubt.

“They will have to go back and revisit these cases,” said attorney John Elwood, a former Justice Department official. “It will be hundreds and hundreds.”

Myriad challenges already have been lodged, by employers ranging from Pennsylvania’s Lancaster Symphony Orchestra and the University of Southern California’s Keck Hospital, to a manufacturing facility in Lakeland, Fla., called Maxpak. The challenges are on hold pending a Supreme Court decision in the Noel Canning case.

A Noel Canning win also could undercut actions taken at the new Consumer Financial Protection Bureau by Richard Cordray, who was initially given a recess appointment to head the agency many Republicans oppose.

But first, the high court must figure out what’s a recess and what’s a vacancy.

The U.S. Court of Appeals for the District of Columbia Circuit ruled that for appointment purposes, a “recess” is only between the first and second session of a Congress. For instance, the first session of the current Congress expired Dec. 26, 2013, and the second session commenced Jan. 3, 2014.

The appellate court also said that the recess appointments can only be made for positions that became vacant during the recess. If the Supreme Court agrees, this would dramatically reduce the number of appointments that could be made.

In a similar case, an appellate court last July overturned an NLRB decision concerning a rental car labor dispute at the Raleigh-Durham International Airport in North Carolina.

The court challenges undercut a tool that all presidents use. President Bill Clinton made 139 recess appointments and President George W. Bush made 171, according to the Congressional Research Service. Through June 2013, Obama made 32 recess appointments.

“Throughout our history, presidents have made appointments in these circumstances to fill offices temporarily when the Senate was unavailable to provide its advice and consent, thereby ensuring that the laws would be faithfully executed,” Solicitor General Donald Verrilli Jr. advised the Supreme Court.

Some of these recess appointees eventually get their day on the Senate floor.

In March 2010, for instance, Obama gave a recess appointment to Florida native Francisco J. Sanchez; six months later, the Senate confirmed Sanchez to his Commerce Department trade post. Senators, though, also increasingly flex their political muscles to permanently frustrate nominees.

Senate Democrats initiated pro forma sessions in order to block George W. Bush’s Republican nominees. A presiding senator gavels the Senate into a very brief session, typically with no other senators present. The idea is that by doing this every few days, the Senate avoids starting a recess.

During the Obama presidency, Senate Republicans, with the help of GOP lawmakers in the House of Representatives, have similarly forced the pro forma sessions.

Potentially, Elwood said, the Supreme Court could conclude Congress determines when it’s in recess. This would be a victory for Noel Canning and its allies, but justices could also stop short of imposing further limits on the types of vacancies presidents can fill.

Email:; Twitter: @MichaelDoyle10

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