The Congressional Institute
1700 Diagonal Road. #730
Alexandria, VA 22314

Phone: (703) 837-8812

The Sausage Factory

Obama Appeals Recess Appointment Ruling to the Supreme Court

This week the Obama Administration appealed to the Supreme Court to overturn a lower court’s ruling invalidating the President’s recess appointment of three members of the National Labor Relations Board (NLRB).  The U.S. Court of Appeals for the DC Circuit ruled in January that certain recess appointments the President made were invalid, because the Constitution only permits recess appointments during recesses between sessions of Congress, which was not the case with his appointments.

The outcome has major constitutional and practical implications.  The most important immediate effect is that over 50 companies have appealed rulings made by the NLRB; since the board members were illegally appointed, the rulings are invalid they argue.

We have written several times on this issue:  The most detailed discussion can be found here.

Recess appointments have been a source of dispute between the Congress and the President.  They are, in the modern era, an attempt to bypass the constitutional requirement of advice and consent on certain Presidential appointments.   The Founders, it appears, provided for recess appointments as a means for providing continuity of government operations during the long recesses of the early Congresses.  But today, Presidents use the recess appointment power to bypass the Senate when the constant use of the filibuster leaves key positions vacant for months and even years.

While one can argue that the President’s frustration with the Senate is real (just as every President before him has also done), it is, as the Court has ruled, not readily apparent that the Constitution permits these appointments.

Most Americans probably do not know about the National Labor Relations Board, and even fewer know about the technicalities of the dispute in question, but it is a good example of why Congress wants to preserve its power.  The Board makes important ruling regarding labor disputes with private sector companies.  Some of these rulings have significant impacts on the lives of workers and the companies that employ them.  Since the NLRB decisions are so important, Congress should keep as close an eye as possible on the panel, which would certainly include senatorial confirmation of its members. Congress should not want, nor would the Constitution permit, the President to be able to make important appointments without the advice and consent of the Congress.

The recess appointments are part of a battle of wills between the two political branches of the Federal Government—but there should not be this competition.  President Obama wants a pro-labor union majority of the NLRB.  Unfortunately for him, there are not 60 Senators who agree with him.  Since the Constitution does not give the President the ability to just ignore the Senate and appoint his board members anyway, he must compromise, and presumably, appoint more acceptable candidates to the NLRB.  And as much as ideologues find the word “compromise” to be a dirty word, the authors of the Constitution deliberately designed the founding document to prevent any one branch from dominating another.

The President will have his day in Court if the Supreme Court accepts his appeal, but the odds are the Court will preserve the balance of powers and sustain the U.S. Court of Appeals decision.

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

Sign up for email updates