Even Unanimous Decisions on the Supreme Court are Political (Part I)

The Supreme Court decision for the 2013 case National Labor Relations Board (NLRB) v. Noel Canning was decided by a 9-0 unanimous decision. The Court correctly decided the Obama administration used the “recess appointment clause” incorrectly when appointing three members to the NLRB. So how could a correctly decided case by unanimous decision be controversial? First, the majority was divided between conservative and liberal interpretations of the “recess appointment clause”. Secondly, there was little to no precedent on the “recess appointment clause” giving liberals more latitude to push the living constitutional narrative. Antonin Scalia wrote the conservative majority opinion defending the original text of the constitution. Stephen Breyer, wrote the liberal interpretation of the majority opinion defining the “recess appointment clause” based on the historical use of the clause. Since five justices sided with the Breyer argument over the Scalia argument, Breyers point of view is the law of the land.

The recess clause states: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” There were two fundamental questions before the Court: 1. Does the president have the right to fill a vacancy during any Congressional recess or just during one major recess and 2. Can the president fill any vacancy including those that did not happen during a Congressional recess? At the beginning of American history, Congress did not remain in session very long – about 4 to 6 months - and then went on a long 6 to 8 month recess. Today, Congress in session most of the year and take several (shorter) recesses throughout the course of a year. This change in Congressional work patterns was argument enough for Breyer to want to change the scope of the “recess appointment clause”

Justice Breyer changed the meaning of the “recess appointment clause” in his decision based on “late arising historical practices”. Thus, Breyer not only changed but basically read the “recess appointment clause” out of the constitution. According to Breyer, Congress must be out of session for at least 3 days for it to be considered a recess. The president can make a recess appointment during “any” recess that is over 10 days long. In other words, the President cannot make a recess appointment during “any” recess that is 3 to 9 days in length. Breyer made things even more complicated by leaving his “recess appointment” definition open ended. For instance, there may be instances following an emergency or catastrophe where the president could make a “recess appointment” at any time (during a Congressional recess).

Justice Scalia disagreed adamantly. First, he talked of the responsibility of the Court to adhere to the original text of the constitution so the “separation of powers” between the legislature and executive branches is honored. Under Breyer’s definition the executive branch garners much more power and it can remove the Senate from the confirmation of appointments altogether. This new executive power could certainly, at times, encroach on the liberties of “We the people”. Scalia cites Marbury v. Madison that is the responsibility of Court to “to say what the law is”. Justice Kennedy wrote in Zivotofsky v. Clinton that the Court role is not “lessened” when “two political branches are adjusting their own powers between themselves”. In Enterprise Fund v. Public Company Accounting Oversight the Court said it “does not depend on whether the encroached-upon branch approves the encroachment”. In other words, the history of how the “recess appointment clause” was used does not matter. What matters is determining the law.

Scalia also argues that the words “the recess” suggests that the president can only make appointments during one break separating two sessions – not during multiple recesses as Breyer suggests. Scalia refutes Breyer’s argument that the founders merely forgot to place time frames within the clause. Scalia shows that there are two clauses in the Constitution that places time frame restrictions on both the legislative and executive branches. For instance, the president has 10 working days to act on passed legislation or it becomes law. Scalia further refutes another Breyer argument that would change the meaning of the word “happen” in the recess appointment clause that would enable a president to appoint officers for all vacant offices, including those that were not opened during a recess. This presidential power would permit the executive to infinitely refill positions during every recess and their appointment would never expire and they would never face Senate confirmation. Finally, as to the “open ended” nature of the Breyer version of the clause, Scalia explains a natural disaster happening during a Senate Recess would still require them to return to session to appropriate funds since only Congress can appropriate funds. Therefore, there is no need to keep the clause “open ended”.