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This morning, a panel of the U.S. Circuit Court for the District of Columbia heard oral argument in Noel Canning v. National Labor Relations Board, a challenge to the appointment of NLRB board members during a pro forma session of the Senate earlier this year. The court considered the extent to which the Senate controls the procedure and manner of carrying out its constitutionally assigned advice and consent role on Executive appointments.

While the Senate did not formally appear in the case, 41 Republican Senators filed an amicus brief and were represented at argument by Miguel Estrada.

The panel hearing today’s argument -- Judges David Sentelle, Karen Henderson and Thomas Griffith -- appeared willing to take up the question of the President’s authority under the recess appointments clause of the Constitution. The panel expanded the hearing from 40 minutes to an hour in order to explore all aspects of the parties’ arguments.  

History of the Appointments and Noel Canning

In January, President Obama appointed Sharon Block, Terence F. Flynn, and Richard Griffin to the NLRB. At the time, the Senate was holding pro forma sessions, a procedure previously used by Senate Democrats to prevent recess appointments. Unsurprisingly, as the newly appointed board members began issuing orders and opinions in labor disputes -- including one against bottling company Noel Canning -- challenges to the Board’s authority arose. In addition to reviewing the NLRB decision itself, the court today also considered whether the NLRB panel was lawfully constituted.

The Question of Recess Appointment Authority

From the outset, the court was willing to address the question of recess appointments and not side-step the matter as a political question. Much of the attention from the bench centered on an originalist understanding of the recess appointment power. For example, Judge Sentelle repeatedly noted the importance of the article “the” placed before “recess” in the Constitution, suggesting the intent that recess appointments be used solely for inter-session appointments, and not for intra-session appointments.

“The President shall have power to fill up all vacancies that may happen during the recess of the Senate . . .” -- U.S. Constitution Article II, Section 2, Clause 3.

Judge Griffith, citing Federalist 67 and Joseph Story, noted that the recess appointment was intended as a way to help the Senate from having to perpetually be in session. The way the power now operates, however, is solely a question of whether the President is frustrated with the Senate’s will to consent to a nomination.  Similarly, Mr. Estrada argued that understanding the recess appointment power in the manner the President wielded it would turn a “break-glass-in-case-of-emergency” power into “a background rule that allows our President to evade the role of the Senate.” Finally, Judge Griffith observed that “once you remove yourself from the principles set forth in the Constitution — inter-session versus intra-session — you are adrift,” in that the restraints the Executive places upon itself in making inter-session recess appointments appear arbitrary. For example, Judge Sentelle wondered why the Executive believed it could use the authority when the Senate was in recess for three days but not two.

“The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess…” -- Federalist 67

Considerations of Noel Canning Going Forward

The Constitution is clear that the “ordinary power of appointment is confined to the President and Senate jointly,” as Alexander Hamilton wrote in Federalist 67. If the President’s unprecedented recess appointments are allowed to stand, either by congressional acquiescence or judicial imprimatur, then Hamilton’s vision for the Senate’s role in consent to executive nominations is completely flipped. The President will be afforded a secondary path of appointments held solely by him. Thus, the President may make executive appointments whenever he deems the Senate to be in recess or whenever he feels the Senate is not acting at a pace acceptable to him. The Senate’s advice and consent role will have been rendered a nullity, and the Senate will have abdicated a critical responsibility our founders gave it in the Constitution, to the detriment of all Americans that believe in and require checks on the Executive.