Protect the President’s Appointments
By THE EDITORIAL BOARDJAN. 11, 2014
Under the Constitution, the president nominates federal judges, cabinet members and officials for executive agencies, and the Senate votes on their confirmation. But what if the Senate isn’t in session? The answer has always seemed clear: The Constitution gives the president the power to fill “all vacancies that may happen during the recess of the Senate.”
On Monday, for the first time in its history, the Supreme Court will hear oral arguments over the meaning of that clause. On one level, the debate is about language and history: What does “the recess” refer to? What did the framers mean by “happen”? But this legalistic dispute should not obscure the larger issue at stake: The government needs to be able to function even when Congress can’t — or won’t — do its job.
The case, National Labor Relations Board v. Noel Canning, started as an ordinary labor dispute between a soft-drink bottling company in Washington State and the local union over a contractual pay raise. The N.L.R.B., a federal agency that hears such disputes every day, ruled for the union in February 2012. The company appealed, arguing that the decision was invalid because President Obama had wrongly used the recess-appointment power to install three of the board’s five members the previous month.
Without those three, the labor board did not have enough members to function, and in temporarily restaffing it, Mr. Obama was simply following long-established practice by both Democratic and Republican presidents faced with an intransigent Congress. Over the last 150 years, presidents have made more than 600 such civilian appointments and thousands of military appointments. (A recess appointment expires at the end of the session unless Congress acts on it first.)
And yet in a remarkably myopic ruling last January, the federal appeals court in Washington blocked out that reality and held, among other things, that the Constitution’s use of the words “the recess” must mean there is only one, which falls between the end of one Congressional session and the start of the next.
There are historical arguments for why that reading may have made sense in the nation’s early days, when travel times were long and recesses could last for months. But in the 21st century, senators come and go as they please, and recesses are short and frequent. What has not changed is a president’s need to be able to staff the cabinets and federal agencies so that the government’s work can be done.
Of course, a functioning N.L.R.B. is precisely what business-friendly Republicans want to prevent. They see the board as too pro-union, and are so intent on thwarting it and other agencies that they forced the Senate to hold phony “pro forma” sessions every three days during the January 2012 break — some of which lasted only a minute — just to prevent the president from using his recess-appointment power.
To be fair, Senate Democrats introduced this tactic in the last years of George W. Bush’s presidency, but Republicans have blocked Mr. Obama’s appointments at a far higher rate. They have made an art of avoiding up-or-down votes on judges, agency officials and even cabinet members.
Since the Senate finally voted last November to eliminate the filibuster for most presidential nominees, Mr. Obama should have an easier time getting them confirmed. But there are still plenty of tricks senators can use to jam the system, from refusing to conduct hearings to placing holds on nominees. And if Republicans retake the Senate in November, they won’t need a filibuster to keep Mr. Obama’s agencies from functioning.
The absurdity of the appeals court’s ruling reaches not just into the future but into the past. If Mr. Obama’s recess appointments are ruled unconstitutional, thousands of other such appointments made over the years by other presidents would be called into question, not to mention more than 1,300 rulings made by the “invalid” labor board.
The Supreme Court should overturn the appellate ruling and reaffirm a longstanding practice that is consistent with both the language and the meaning of the Constitution, and that allows presidents to do their job.