NLRB v. Canning: A Missed Opportunity

While the Supreme Court placed a check on President Obama’s use of the recess appointments power, the Court also expanded the presidential power, writes Roger Pilon, director of Cato’s Center for Constitutional Studies.

In January 2012, the President filled three vacancies that had arisen on the National Labor Relations Board. The Senate had refused to confirm the nominees. In filling the positions, the President cited the recess appointments power, despite the fact that the Senate said that it was not in recess and was holding pro-forma sessions every three days.

The Constitution requires that the president make appointments only with the consent of the Senate.

– However, if vacancies “happen” while the Senate is not in session, the Constitution allows the president to fill those spots.
– The exception is intended to allow the business of government to continue when the Senate is not in session — but it was not intended to provide a way around the requirement that nominees be confirmed.

Justice Scalia’s concurring opinion explained that the recess power was only intended to be exercised when the Senate was in formal recess — the break between the two formal legislative sessions of Congress. Additionally, it was only intended to apply to vacancies that occur during the recess.

Pilon explains that Justice Breyer, who authored the majority opinion, deemed the appointments invalid but did not stick to the text of the Constitution, rather cited historical practice. The majority opinion ruled that the president could make appointments during short legislative breaks in the middle of a session. Additionally, Breyer wrote that those appointments could fill offices that had been vacant prior to the break.

According to Scalia, the decision “will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.”

The decision, Pilon says, was a “missed opportunity to restrain a power that for too long has been abused.”

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