The Supreme Court will weigh in on a major flash point between President Obama and Senate Republicans, who challenge his use of recess appointments while their chamber is holding ‘pro forma’ sessions.

By Warren Richey

WASHINGTON — The US Supreme Court on Monday agreed to take up a potential landmark case examining whether President Obama usurped the power of Congress in January 2012 when he sidestepped the Senate approval process to seat three new members on the National Labor Relations Board (NLRB).

At issue in the case is whether a president’s power under the Constitution’s Recess Appointments Clause is limited to appointments during the formal recess between each new Congress or whether it also extends to less formal breaks that occur within a Senate session.

The case will also test whether the recess appointment authority may be exercised by the president when the Senate is convening every three days in “pro forma” sessions.

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The NLRB appointments were necessary to ensure the board continued to have a three-member quorum capable of issuing rulings. 

The case, National Labor Relations Board v. Noel Canning (12-1281), will be set for argument during the court’s next session, which begins in October.

The dispute marks an important test of the scope of presidential power to bypass the general requirement that the president obtain the advice and consent of the Senate on nominations to executive branch and judicial posts.

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The Constitution’s Recess Appointments Clause was designed to allow the president the flexibility to fill vacant positions when the Senate is not available to perform its required function of advice and consent.

The issue arose in January 2012 at a time when the full Senate was not sitting, but the body, nonetheless, was convening in pro forma sessions every three days.

Some legal analysts argue that this procedure effectively kept the legislative body in session, foreclosing any possible recess appointment by the president.

But others, including the Justice Department’s Office of Legal Counsel, concluded that since the Senate was not conducting actual business during three weeks in January, the body was in recess.

“In view of the Senate’s explicit cessation of business for that extended period, the President determined that the Senate was in recess,” Solicitor General Donald Verrilli wrote in his brief urging the high court to take up the case.

“Accordingly, on January 4, 2012, the President invoked the Recess Appointments Clause and appointed three new members to fill the vacant seats on the [National Labor Relations] Board,” Mr. Verrilli wrote.

The action was unusual not just because of the reliance on the recess appointment authority. It was unusual because two of the three appointees to the NLRB had been nominated only three weeks earlier. By the time the president unilaterally placed them in their jobs on Jan. 4, routine committee questionnaires and background checks related to their nominations had not yet been submitted to the Senate.

The validity of the appointments was first raised in a case before the NLRB. Noel Canning is a soft drink bottling and distribution company in Washington State. The firm was in a dispute with the Teamsters Union over a collective bargaining agreement.

The issue went before the board and the board ruled against Noel Canning. The company took its case to the federal appeals court in Washington, D.C. As part of its argument, lawyers for the company challenged the validity of Mr. Obama’s recess appointments to the board. They argued that since the appointments were invalid, the board lacked a quorum and was powerless to issue a ruling in the case.

The appeals court agreed, ruling that the president’s recess appointments to the NLRB were unconstitutional. The court said the president has the power to make recess appointments only between complete, enumerated sessions of Congress, rather than during brief recesses or intra-sessional breaks.

The appeals court also ruled that the president could only use recess appointments to fill vacancies that arose during an intersessional recess – a recess between the old Congress and a new Congress.

In his brief urging the high court to take up the case, Noel Canning’s lawyer, Noel Francisco, suggested that in addition to considering the appeals court’s decision concerning intersessional recesses, the court should also examine whether the president’s authority to make recess appointments applies when the Senate is convening every three days in pro forma sessions.

In its brief order on Monday, the court agreed to examine that issue as well as the broader question raised in the case.

“Until January 4, 2012 – when the President made the appointments at issue – no President had ever attempted to make recess appointments where the Senate was convening in pro forma sessions every three days,” Mr. Francisco wrote in his brief.

He said Obama’s actions made him “the first President in history to attempt an intrasession recess appointment while the Senate was convening sessions every three days.”

Solicitor General Verrilli also urged the high court to take up the case, but for a different reason. He said the appeals court decision, if allowed to stand, would “dramatically curtail the scope of the President’s authority” to make recess appointments.

“Before that decision, Executive practice had long been predicated on the understanding that the Recess Appointments Clause authorizes the President to fill vacancies that exist during a recess of the Senate, regardless of whether the recess occurs between two enumerated sessions of Congress or during a session, and regardless of when the vacancies first arose,” the solicitor general said in his brief.

He warned that the appeals court decision, if upheld, would “deem invalid hundreds of recess appointments made by Presidents since early in the nation’s history.”

The solicitor general added: “It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.”

A friend-of-the-court brief filed on behalf of Senate Republican leader Mitch McConnell and 44 other senators denounced Obama’s use of the recess appointment authority as a “presidential power-grab.”

“The President usurped two powers that the Constitution confers explicitly, and exclusively, on the Senate,” Washington lawyer Miguel Estrada wrote in the McConnell brief. The two Senate powers are the ability to reject an appointment and the authority of the Senate to write its own rules for when the Senate is in session and when it is in recess.

Mr. Estrada said that the president “resorted to recess appointments in January 2012 not because the Senate was unable to give an answer on nominations, but because he did not like the answer he received.”

Others view the recess appointment authority as a broader grant of power to the president. “By giving the President the power to ‘fill up all vacancies that may happen during the recess of the Senate,’ the Framers ensured that the President could fill any vacancies that existed when the Senate was unable to perform its advise-and-consent function,” wrote Elizabeth Wydra in a friend-of-the-court brief on behalf of the Constitutional Accountability Center.

She said that the president retains the power to make recess appointments regardless of whether it comes between sessions or during a session. “This interpretation is consistent with Framing-era understanding of the term ‘recess,’ and the court below points to nothing in the clause’s text or history that compels a contrary result,” she wrote.