The Supreme Court seems poised to rule Obama's 2012 appointments to the National Labor Relations Board unconstitutional, with some of the high court's conservatives sounding eager to return to a view of recess appointments not held since the horse and buggy days.
"They have an absolute right not to confirm nominees that the president submits," Chief Justice John Roberts said of the Senate during oral arguments Monday.
Roberts was hardly an outlier. Both the high court's Democratic and Republican appointees appeared hostile to the Obama administration's argument that the president could make recess appointments when the Senate is technically in session--even if the only reason they're in session is to prevent the president from making recess appointments.
Justice Elena Kagan, appointed to the high court by Obama himself, warned Solicitor General Donald B. Verrilli Jr. that when it comes to deciding when the Senate is in recess, "the history is entirely on the Senate's side, not on your side."
Two years ago, seeking to prevent the National Labor Relations Board and the Consumer Financial Protection Bureau from functioning properly, Republicans kept the Senate in session while legislators were actually home for the holidays. Referred to as "pro forma sessions," the Senate would be gaveled in for a few minutes just to deny Obama the authority to make recess appointments, just as Democrats once did with President George W. Bush.
Fed up with the Senate blocking key nominees to administration posts, Obama made the appointments anyway, arguing that the Senate was technically in recess since it wasn't actually conducting business. When the NLRB ruled that Noel Canning, a canning and bottling company, had illegally reneged on a labor agreement with its workers, Noel Canning sued, arguing that the decision was invalid because Obama's recess appointments to the board were unconstitutional.
For more than two centuries, American presidents have made recess appointments, sometimes between sessions of the Senate and sometimes when the Senate was on a temporary break. Sometimes presidents made recess appointments even when a vacancy occurred before the recess itself. But if the recess appointment power was once meant to keep the government functioning when legislators returning to the capitol meant a lot more than a few hours on a plane, it has since become a way for presidents to temporarily get around an obstructionist Senate--and there's never been one quite as hostile as the one Obama has faced since taking office.
"Ambition should counteract ambition," Verrilli said, pleading with the high court not to narrowly interpret the recess appointment power. "It shouldn't disarm one side."
To argue their case, and to highlight Democratic hypocrisy when it comes to obstruction, Senate Republicans chose Miguel Estrada, a one-time Supreme Court prospect whose nomination to the federal bench was blocked by Democrats while Bush was in office. "There is no parade, and there are no horribles," Estrada said dismissing the Obama administration's argument. All that would happen, Estrada said, was that presidents would have to nominate candidates "acceptable to the Senate."
That sounds simple, but Republicans weren't just opposing particular nominees, but the existence of entire agencies. In the case of the Consumer Financial Protection Bureau, Republicans refused to confirm any nominee for director unless the agency's ability to regulate financial institutions was gutted. South Carolina Republican Senator Lindsey Graham said it would be "progress" if the National Labor Relations Board were "inoperable." Under Obama, Senate Republicans were turning their "advise and consent" role into a tool for nullifying laws they didn't have enough votes to block when they were passed.
When the D.C. Circuit--the same federal court that Republicans fought tooth and nail to prevent Obama from making any appointments to--sided with Noel Canning, they didn't just say that Obama's recess appointments were unconstitutional. They said that recess appointments could only be made between sessions of Congress, and only then if a vacancy occurred during a recess. That interpretation would have prevented thousands of recess appointments by presidents from both parties, throwing out the way the recess appointment power has been used for decades.
Yet Justice Antonin Scalia seemed unbothered by the idea, caricaturing the Obama administration's reliance on precedent as "if you ignore the Constitution often enough, the meaning changes."
The question is how big of a headache the high court wants to give the Obama administration and future presidents--from either party. Siding with the D.C. Circuit ruling entirely would make it much harder for the government to function, especially if the opposing party controls the Senate. With the filibuster nuked for presidential appointments, the stakes are lower because nominees can be confirmed by a majority vote. But the high court could rule that the Senate gets to decide when it's in recess, ruling that only Obama's recess appointments, made in defiance of unprecedented Republican obstruction, are invalid.
"If the Court does not allow the traditional recess appointments, you'll have a federal bureau created by Congress but one that Congress won't allow the president to staff," said Adam Winkler, a law professor at the UCLA School of Law. It would also mean the recess appointment power would be all but useless to future presidents if the opposite party controls the Senate, because they could just keep it in session virtually all the time. That could be Obama's fate if Republicans take back the Senate in 2014.
A narrower ruling could still cause significant problems for the Obama administration. Aside from throwing past decisions reached by the NLRB into question, it could also cause significant trouble for the Consumer Financial Protection Bureau, the agency set up in the 2010 financial reform law meant to prevent another economic crisis. The GOP only relented and agreed to confirm Obama's nominee Richard Cordray last July as part of a last ditch effort to preserve the filibuster.
The CFPB requires a director to exercise its full enforcement powers, so an adverse decision from the high court could lead to a flood of lawsuits financial institutions seeking to avoid regulations put in place before Cordray was confirmed.
"This is uncharted territory. Much of the CFPB’s new rule-making and enforcement authority require a director, so actions undertaken before Cordray’s confirmation could potentially be subject to challenge," says Alicia Bannon of the Brennan Center for Justice. "Since Cordray has now been confirmed it is likely that he would seek to ratify his past decisions after-the-fact. This too would create legal uncertainty and open the door to litigation."
The great irony is that had Senate Democrats had the will to nuke the filibuster in 2012, instead of putting up with another year of Republican obstruction before doing so, this case never would have reached the high court. They simply would have been able to confirm Obama's nominees with a simple majority vote, and none of the decisions made by the relevant agencies would be in peril.
Sometimes, a little cowardice goes a long way.