Yesterday, the Supreme Court heard oral argument in National Labor Relations Board v. Noel Canning. The much-anticipated case concerns the scope of the President’s “Power to fill up all Vacancies that may happen during the Recess of the Senate . . . .” As Ali noted in last week’s explainer, the question arises in the context of an Order issued by a panel of the National Labor Relations Board that included two members appointed by President Obama while the Senate was convening every three days “for pro forma sessions only, with no business conducted” under an adjournment order. Moreover, the relevant vacancies didn’t open up while the Senate was between pro forma sessions. A number of commentators have offered analysis of the oral argument:
At SCOTUSblog, Lyle Denniston concludes that yesterday’s oral argument “seemed to go considerably better” for Respondent Noel Canning “than for the defender of presidential authority, U.S. Solicitor General Donald B. Verrilli, Jr.” On Denniston’s account, General Verrilli made “little headway” in his argument that the text and spirit of the Recess Appointments Clause validate the appointments at issue. As Denniston notes: “Even some of the Justices whose votes the government almost certainly needs to salvage an important presidential power were more than skeptical.” Indeed, it appeared to Denniston that only Justices Ginsburg and Sotomayor were sympathetic to the making of recess appointments while the Senate is holding pro forma sessions.
“The Supreme Court seems poised to deal a serious blow to the president’s recess appointment power, judging from the surprisingly widespread hostility justices expressed Monday,” writes Josh Gerstein at Politico. In particular, Gerstein notes that the Justices appeared in accord that the Senate could avoid triggering the President’s recess appointment power via holding pro forma sessions. Justice Kennedy in particular questioned General Verrilli on whether the administration had offered an administrable rule for determining when a recess begins in a period in which the Senate is convening pro forma. “Your argument is, it seems to me, missing a limiting principle,” Justice Kennedy said.
Some among the Court were also unmoved by General Verrilli’s argument that affirmance “would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington.” As Gerstein notes, Justice Scalia cited various procedural doctrines that would cabin any ruling and preserve decisions made by many judges and officials whose appointments are called into question.
Adam Liptak of the New York Times believes that at oral argument, “Justices across the ideological spectrum appeared prepared to rein in the ability of presidents” to make recess appointments in the manner that President Obama did. In particular, he notes that the Court didn’t appear amenable to efforts to frame the Clause as a safety valve of sorts to address congressional intransigence. Notably, Justice Breyer remarked that “I can’t find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the president.”
For Liptak, General Verrilli “ran into significant headwinds” in his effort to show that Congress was in recess while operating under the adjournment order, and that the relevant vacancies “happen[ed] during the Recess of the Senate” within the meaning of the Clause.
At the Journal, Jess Bravin and Melanie Trottman are in accord with the general sentiment among commentators: “justices of all ideological stripes” seemed poised “to rein in the president’s power to make ‘recess appointments.’”
Bravin and Trottman note that General Verrilli framed President Obama’s appointments as consistent with a “stable equilibrium” that has developed between Senate and White House. The Court, General Verrilli maintained, should simply restore the “status quo.” But Justice Kagan questioned whether the administration was in fact invoking the Clause to address congressional intransigence, rather than for the traditionally understood purpose of appointing subordinates necessary to assist presidents in their efforts to take care that the laws be faithfully executed. “And that makes me wonder,” Justice Kagan observed, “whether we’re dealing here with . . . something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended.”
At the Washington Post, Robert Barnes notes that “Supreme Court justices across the ideological spectrum seemed inclined Monday to find President Obama lacked the constitutional authority to make” the NLRB appointments.
Barnes too highlights the resistance that met General Verrilli’s argument that the President had authority to determine that the Senate was in recess. As Justice Kagan remarked: “It really is the Senate’s job to determine whether they’re in recess or whether they’re not.” But, as Barnes notes, Justice Ginsburg seemed concerned with the broad implications of the argument advanced by counsel for Respondent Noel Canning, Noel Francisco of Jones, Day. “Your argument would destroy the recess clause,” observed Justice Ginsburg. “Under your argument, it is totally — totally within the hands of the Senate to abolish any and all recess appointments.”