Many Americans are baffled by the decision handed down in June by the Supreme Court, “National Labor Relations Board v. Noel Canning. The ruling stemmed around the validity of 3 recess appointments- specifically whether three people named by President Obama to the National Labor Relations Board were considered ineligible to serve because their appointments were made while the Senate was technically in a "pro forma" session during a holiday break in 2011-12.
“A pro forma session is a brief meeting with either the House or the Senate where no voting takes place and no legislation is discussed or passed. Typically, a pro forma session is held just to satisfy constitutional requirement that states each House or chamber must seek another House or chamber's permission if they recess for more than three days. To satisfy this rule, a pro forma session is called where the members meet briefly for that purpose only (VanBaren, J., eHow Contributor).
The Supreme Court concluded in a 5-4 split, recess appointments are valid only if the breaks lasted 10 days or more- Justice Breyer believed the breaks were too short- the unanimous opinion of the court was that these pro forma sessions did not constitute a recess because “the Senate is in session when it says it is,” as long as it is capable of conducting business (NY Times).
Clearly the ruling “gave the appearance” of limiting the President’s power to make recess appointments despite the fact Republicans were blocking all his nominations to the board, regardless of their skills and accomplishments at the time. On November 21, 2013 Harry Reid stated that 82 presidential nominees had been blocked under President Obama, 86 blocked under “all” other presidents. Opponents argue that the President was/is abusing his executive power, which is also baffling since history does not support that argument. For example, according to the Wall Street Journal, the estimated number of documented recess appoints by past presidents include:
Appointed during recesses within sessions of Congress
- Ronald Reagan 72
- George H.W. Bush 37
- Bill Clinton 53
- George W. Bush 141
- Barack Obama 26
- Ronald Reagan 160
- George H.W. Bush 41
- Bill Clinton 86
- George W. Bush 30
- Barack Obama 6
According to the Department of Justice, “the constitution allows a president to fill temporary appointments during a recess without congressional approval, but during this administration, lawmakers have sought to thwart certain appointments by never technically shutting down the Senate”. Although this is not a new phenomenon, it is to the extent to which this administration has experienced. “When one branch of government routinely abuses its constitutional power in order to prevent another from functioning, the Supreme Court is expected to take notice and stop the abuse. Unfortunately, the court failed to do so on in an important balance-of-power case.” (New York Times).
Some Americans might question whether this case was a good source of taxpayer’s dollars or even deemed worthy of a ruling by the highest court of the land. One might simply ask, what is more important (1) whether the appointees were qualified to do the job? Or (2) how they got appointed? In short, given the circumstances (i.e. road blocks) surrounding the appointments, it’s hard to ascertain it belonged in a Supreme Court any more than the reading of Green Eggs & Ham belonged on the Senate floor during a filibuster (technically an ACA protest) by Senator Cruz.
Despite the baffling ruling, all was not lost, the court largely re-instated the long-standing accommodation between the executive branch and the Senate, in which recess appointments were allowed during more extensive breaks. With that being said, President Obama vowed to press on and use executive actions wherever and whenever possible.