Courts May Weigh In on the Constitutionality of President Obama's Recess Appointments to the National Labor Relations Board

On January 4, 2012, President Obama bypassed the Senate and appointed Sharon Block, Richard Griffin, and Terence Flynn to the National Labor Relations Board ("Board") through the use of temporary "recess appointments."  These recess appointments will expire at the end of the next congressional session.  President Obama had attempted to nominate Griffin and Block through the formal Senate confirmation process, but those formal nominations had been blocked by Senate Republicans.

Article II, Section 2 of the U.S. Constitution, which applies to the appointment of Board members, states that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States . . . ; but the Congress may by Law vest the Appointment of such . . . Officers, as they think proper, in the President alone . . . .  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."  This last sentence is commonly referred to as "recess-appointment power."

President Obama contends that these recess appointments are proper because, at the time of the appointments, the Senate had not conducted any legislative business since it broke for the holiday break on December 17, 2011.  However, Republicans counter that the Senate has not entered into a formal "recess" and, instead, has deliberately held brief, pro forma sessions every three days since December 17.  The Senate, which is controlled by the Democrats, has held these brief, pro forma sessions since December 17 to comply with the restriction in Article I, Section 5 of the Constitution that prohibits either chamber of Congress from "adjourning" for more than three days without the consent of the other chamber.  Because the Republican-controlled House had refused to grant its consent to the Senate's adjournment, Republicans in both chambers argue that the Senate could not have been in recess when President Obama appointed Block, Griffin, and Flynn.  In short, Republicans argue that, if the Senate could not "adjourn" for more than three days, it most certainly could not have been in a "recess."

The courts may end up deciding whether the Senate was in a "recess" and, if not, whether President Obama's recess appointments violate the Constitution.  If the courts find that the Senate, which could not constitutionally adjourn was, nevertheless, in a recess, future presidents likely will argue that they are empowered to make recess appointments anytime the Senate is briefly out of session, even if only for a holiday weekend.  Such a result would severely undermine the Senate's advice and consent function on presidential appointments.

Whatever result the courts ultimately reach, they  will have to deal with the Constitutional proviso that immediately precedes the recess appointment power.  That proviso to the general rule that the Senate must consent to presidential appointments states that, "Congress may by Law vest the Appointment . . . in the President alone."  This language plainly dictates that only both houses of Congress may provide for unilateral appointments (i.e, appointments without the advice and consent of the Senate).  In the absence of such a Congressional enactment, appointments must receive Senatorial consent unless the Senate is unavailable to consent because of a recess.  In this instance, Section 3 of the National Labor Relations Act, as amended, explicitly states that Board members shall be "appointed by the President by and with the advice and consent of the Senate."

Furthermore, the court also will have to construe the terms "adjournment" and "recess" in light of the meaning that those terms had when the Constitution was enacted.  Article I, Section 4, which immediately precedes the section that prohibits the Senate from "adjourning" without the consent of the House, states, "The Congress shall assemble at least once in every Year, and such meeting shall be on the first Monday in December, unless they shall by Law appoint a different day."  The Twentieth Amendment, which was adopted in 1933, changed this date to the third day of January, but Congress still only is required to "assemble at least once in every year."  If Congress is only constitutionally required to assemble once a year, it would seem plain that the framers of our Constitution intended "adjournments" to be brief and recesses to be quite long.

Another issue that the courts may decide is whether the Constitution only allows the president to make recess appointments when the vacancies actually arise during a recess, as opposed to arising before a recess, as in this case.  As noted above, Article II, Section 2 of the Constitution states, "The president shall have power to fill up all vacancies that may happen during the recess of the Senate . . . ."  (Emphasis added).  The italicized language would be superfluous if the appointment power applies to vacancies that pre-exist a Senate recess.  Therefore, it is arguable that the vacancy and the associated recess appointment both must "happen" during a Senate recess for such a unilateral appointment to be constitutional.

While the U.S. Chamber of Commerce has threatened to file suit in federal court over this issue, it may not have legal standing to sustain such a challenge.  Also, certain prudential doctrines barring Congress from bringing litigation against the President may prevent House Republicans from challenging these appointments in court in their official capacities.

However, a challenge to the constitutionality of these recess appointments may be brought by any party who is adversely affected by the actions of the Board.  Without these recess appointments, the Board would not have had the three-member quorum needed to issue decisions or promulgate rules.  Any court challenge to these recess appointments is likely to be decided ultimately  by the U.S. Supreme Court.