The Supreme Court as a Constitutional Court

By Greene, Jamal | Harvard Law Review, November 2014 | Go to article overview

The Supreme Court as a Constitutional Court


Greene, Jamal, Harvard Law Review


Political institutions are always works in progress. Their practical duties and aims as instruments of governance may not always match their constitutional blueprints or historical roles. Political offices might not always have the power to do what their constituent officers either need or want to do. A polity's assessment of whether the desired power is a need or a want may indeed mark a boundary between law and politics in the domain of institutional structure. The law gives, or is interpreted to give, political organs the tools they need to function effectively. They must fight for the rest.

Dissonance between form and function pervaded the dispute that led to last Term's decision in National Labor Relations Board v. Noel Canning. (1) The President has a constitutional duty to take care that the laws be faithfully executed. (2) Part of that duty consists in appointing officers to staff administrative agencies created by Congress to fulfill the missions set forth in their organic statutes. Here, the five-member National Labor Relations Board ("NLRB" or "Board") could not perform its mission--most prominently, resolving claims of unfair labor practices--because the Senate had delayed votes (or credibly threatened to do so) on several of President Obama's nominees to fill Board vacancies. (3)

In response, the President engaged in what Professor David Pozen calls "constitutional self-help." (4) Article II of the Constitution conditions the executive appointment power on "the Advice and Consent of the Senate" (5) but further provides that 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." (6) President Obama purported to exercise this recess appointment power for three Board vacancies on January 4, 2012, when he appointed Sharon Block, Terence Flynn, and Richard Griffin to the Board. (7) The appointments were made the day after the Senate conducted a pro forma ritual gaveling in the second session of the 112th Congress but nineteen days before the Senate would next conduct formal business. Per the Administration's interpretation of Article II, this period was a "Recess of the Senate," and so (absent Senate confirmation or a superseding appointment (8)) the three NLRB appointments would last until the first session of the 113th Congress ended in January 2014.

From the perspective of Senate Republicans and Noel Canning, a cola distributor serving as the nominal respondent, there were three problems with these appointments. First, under their reading of Article II, the President's authority to make recess appointments is active only between rather than within formal sessions of the Senate. That is, recess appointments are valid only when made during the period following an adjournment sine die --one of indefinite length--and preceding the gaveling in of a new session. Second, even if the Senate had been in recess as defined by Article II, the Recess Appointments Clause is triggered only for vacancies that arise during the recess itself. None of the three NLRB vacancies qualified. Finally, even if the President may fill preexisting vacancies through recess appointments, and even if an intrasession recess may count for this purpose, the Senate might not have been in any kind of recess (or might have been in too short a recess) on January 4, 2012. The pro forma sessions, in which a single Senator gavels in and then immediately adjourns a session every three days or so, were designed in part to keep the Senate in perpetual operation as a means of preventing recess appointments. In other words, the specter of unilateral appointments by the President during an intrasession recess had led Congress to its own form of self-help.

By a 5-4 margin, the Court rejected the first two of these claims and accepted the third, holding that pro forma sessions of the Senate were sufficient to prevent a recess of adequate length to activate the President's unilateral appointment power. …

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