It’s not every day that one of the very few specific powers of the presidency gets reviewed by the Supreme Court. But that’s what’s going to happen next year, the court announced today by taking the case of National Labor Relations Board v. Noel Canning. The result next year will determine the balance of power between presidents and the Senate on nominations — and, perhaps, make the new Republican practice of filibustering executive branch nominations even more unsustainable.
What’s amazing about this case is how broad the finding may be. As you may recall, the big controversy last year (and going back to the George W. Bush administration) had been whether presidents could make recess appointments when the Senate left town — but held short pro forma sessions every three days in order to avoid one interpretation of what constituted a “recess of the Senate” (with Bush in the White House, Democrats initiated that parliamentary maneuver; during the Obama administration, Republicans found a way to do so with the help of the Republican House). However, a lower-court ruling found that all of that was irrelevant — in fact, the court found, virtually all recess appointments, going all the back to the 18th century, should have been invalid.
The ruling hinged on two questions: Are recess appointments available during any recess, or only during the time between when one session of Congress ends and the next one begins? And can any vacancy be filled by a recess appointment — or only a vacancy that began during that recess? Both of these questions had been settled, decades ago, in favor of a broader presidential power; the D.C. Circuit Court overturned all that.
The Supreme Court, then, could fully uphold the lower courts, which would have the effect of reading the recess appointment clause entirely out of the Constitution. It could find some middle ground, perhaps returning to the “pro forma session” question and finding against the president in those circumstances, but otherwise preserving what we think of as “normal” recess appointments. Or, it could fully reverse, and interpret the clause in the president’s favor.
The stakes here are high, especially for executive-branch appointments, where the presidential incentive to use recess picks is highest. And the stakes are high precisely because Republicans have embarked on an unprecedented effort to slow or block these nominations, defeating some by filibuster and dragging out others for months.
All of this, as Ed Kilgore points out, won’ t be resolved by the courts before the Senate nominations showdown next month. But it does tend to frame the debate. If the president has the constitutional ability to go around the Senate, then the Senate’s position — and especially the Senate minority’s position — is much weaker than if recess appointments are zapped by the court. In particular, Democrats who are reluctant to impose executive-branch-appointment reform might be more willing to do it if the recess-appointment power is gone and 41 senators can veto any nomination.
But this isn’t fundamentally about Senate reform; it’s about the balance of power between the branches. The truth is that presidents have very few specific powers they can exercise on their own; losing the recess appointment power would permanently reduce the influence presidents have — not only over the Senate, but also over executive branch departments and agencies. And the winners would not only be senators, but also the permanent bureaucracy, which would be a bit freer of presidential oversight, and interest groups that forge alliances with those bureaucrats.
And that’s beyond its immediate effect on the National Labor Relations Board and on other agencies that Senate Republicans are “nullifying” by refusing to confirm any nominee.
In other words, while perhaps not as immediately attention-grabbing as some of the civil rights cases on which the court is issuing rulings soon, the recess-appointments case is a very, very, big deal.