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Supreme Court considers definition of ‘recess’ in case on Obama’s appointments

January 13, 2014 at 5:07 PM EDT
Can the president bypass the Senate in making temporary appointments? Gwen Ifill talks to Marcia Coyle of the National Law Journal about how a local labor dispute transformed into a debate of presidential power and the Supreme Court's first time considering the Constitution's recess appointments clause.

GWEN IFILL: Today’s action at the Supreme Court centered on the question of whether the president can make temporary appointments without Senate approval.

Marcia Coyle of The National Law Journal was in the courtroom this morning and joins us now, as always. She was in the courtroom this morning.

It sounds like today’s arguments were about current day politics, the kind that we see being argued on Capitol Hill, but also about early history of our nation.

MARCIA COYLE, The National Law Journal: Very much so, Gwen.

This case was about the recess appointments clause in the Constitution. And, surprisingly, the Supreme Court has never taken a look at the meaning and scope of that clause. So, today, we heard a lot about the words in the clause and their meaning, historical documents at the time the framers of the Constitution were writing this and what they thought, and also a very, very long tradition of how presidents used or didn’t use the recess appointments power.

GWEN IFILL: How did this end up coming to the court after all this time?


This case basically stems from a labor dispute, a common one, between Noel Canning, which is a Washington State-based soft drink bottler and distributor, and its workers union. There was a disagreement about — over contract negotiations. The union filed a complaint with the National Labor Relations Board. The board ruled in favor of the union. The company took an appeal to a federal appellate court here in Washington, D.C.

Its main argument was that the board lacked the authority to make a decision because three of its five members had invalid recess appointments to the board. The lower federal appellate court agreed, disagreed with the government’s argument that those three members were appointed January 4, 2012, during the period when the Senate had adjourned, but was reconvening in what we call pro forma sessions, not to conduct business.

The administration said that was a recess, the appointments were valid.

GWEN IFILL: Now, whenever we have seen this sort of fight happen, it has happened completely on the political level based on whose ox is being gored. If it is a Democratic president, Democrats think executive power of this sort is fine. And if it’s a Republican president, Republicans think the same thing did.

Did it play out that way in the courtroom today and at the chambers?

MARCIA COYLE: Well, I don’t think so.

I think the justices from some of their questions were very aware of the politics behind this. But they also were very engaged in exploring the meaning of the phrases in the clause that are at issue here. And there are really three issues before the court.

The recess clause gives the president the power to fill all vacancies that may happen during the recess of the Senate. And so they were trying to decide, what is the recess? May the president only make appointments in that break between the biannual sessions of Congress or, as presidents have, during recesses in the middle of a session?

What about “may happen, vacancies may happen”? Does that mean the vacancy has to arise during the recess or, as presidents have done, existing vacancies can be filled during the recess? And one final question, what about these pro forma sessions where business isn’t conducted? Is what a real session of the Senate or is it a recess, as the administration claimed, but was argued today?

GWEN IFILL: Did we expect — did we see the originalists against the liberals? Did we see Scalia and Thomas? I mean, did we see the regular divide, I guess?

MARCIA COYLE: Well, we did in a sense.

I would say every justice today was an originalist, because they really did try to look at the text and understand what its meaning was. But, for example, on the “may happen” phrase, those same justices, most of the justices said they felt that the opponents of the government had the stronger argument, that may happen means arises during.

But some of the same justices, more pragmatic, said, well, what about this 100-year-plus tradition of appointing vacancies that have already existed? So there was that tug-of-war on almost all three questions, the meaning vs. the tradition, and what should prevail, what was more persuasive.

GWEN IFILL: How unusual is it for the justices to have this kind of a clean slate to come before them, not — it’s not like abortion or the other issues we talk to you about where there is a long, long history of jurisprudence.


GWEN IFILL: This is something they get to kind of make up.



GWEN IFILL: Well, kind of.

MARCIA COYLE: It’s very unusual, and they have — don’t have prior decisions to look to.

So, yes, they’re going to be going back to the text, the documents, the tradition, and trying to figure it out. I think the only case comparable to it in recent years was the Second Amendment case involving the District of Columbia’s gun ordinance.

GWEN IFILL: And did this whole debate that we have been having in Washington about filibusters, nuclear options across the street at the Senate, did that come up?

MARCIA COYLE: It didn’t at all.

And I’m not surprised that it didn’t, because, in a sense, although it made it easier for President Obama to get his appointments confirmed, Senate rules change, as we saw with the filibuster rule. And future presidents and future Senates may have this same issue. So the Supreme Court is focused on the questions before it, not on the politics.

GWEN IFILL: One final question. The court also today didn’t do something. They decided not to take up an Arizona abortion case.

This is — a couple of states had decided they would put this 20-week ban into effect. And the court basically backed away and says, this is the state’s business.

MARCIA COYLE: Well, it didn’t say anything.

GWEN IFILL: It didn’t say anything.

MARCIA COYLE: Right. It just declined to get involved, to review Arizona’s appeal.


MARCIA COYLE: The lower federal appellate court here had said the law violated the Supreme Court’s precedent on, you know, when an abortion may occur. So they didn’t say anything.

They didn’t say anything when they declined to get involved in two other cases that came from Oklahoma. So, we really don’t know what the court is thinking about. These cases, they could have had procedural problems. We don’t know.

GWEN IFILL: But we know it had to get worked out at the state level.

MARCIA COYLE: Well, for now, but there’s lots of litigation going on. And it also means the court may see the question again, and maybe they will take a case.

GWEN IFILL: Marcia Coyle with The National Law Journal and our own, thank you so much.

MARCIA COYLE: My pleasure, Gwen.