The U.S. Supreme Court hears arguments Monday in a big constitutional fight over the balance of power between the president and the Senate.
At issue is whether the president's power to make temporary appointments during the Senate recess can be curtailed by the use of pro forma Senate sessions during which no business is conducted.
During the holidays, from mid-December 2011 to Jan. 20, 2012, the Senate did not meet as it usually does. Failing to get the Republican House to grant permission to recess, the Senate formally convened and adjourned multiple times. Indeed, each time the Senate adjourned, it stipulated that no business would be conducted when it reconvened three days later.
A typical pro forma session on Jan. 6, 2012, opened with a Senate clerk reading aloud a letter from the Senate's senior member appointing another senator, James Webb from nearby Virginia, to chair the day's business. Webb then immediately adjourned the Senate session.
That session lasted all of 30 inconsequential seconds. Pretty much the norm for that period. But the legality of those brief sessions is the heart of the dispute before the Supreme Court now.
The president contends that these sessions were, in essence, fakes — a legal pretense — when in fact the Senate was really in recess.
It was during one of these pro forma sessions that President Obama nominated three people to fill long-vacant seats on the National Labor Relations Board. The nominees would serve until the end of the following year or longer if confirmed.
Part of the reason President Obama used the recess appointment mechanism was that Senate Republicans had dragged their feet on so many appointments that the board, charged with enforcing labor laws, did not have a quorum to do its job, and the Supreme Court in 2010 had said the board could not act without a quorum.
Once the recess appointees began their work hearing labor cases, a soda pop bottling company named Noel Canning challenged an adverse ruling, contending that the board's members were unconstitutionally appointed.
Noel Canning won in the U.S Court of Appeals based in Washington, D.C. Now the company, backed by 44 Republican senators, is asking the Supreme Court to affirm its lower court win. The company will argue that the Senate makes its own rules, the Senate was not in recess at the time of the appointments, and that, therefore, the president had no power to make the recess appointments.
Article II of the Constitution states: "The President shall have the power to fill up all Vacancies that may happen during the Recess of the Senate," and that the appointment shall automatically expire at the end of the next year if the nominee is not confirmed.
Texas A&M professor George Edwards points out that, at the time the Constitution was written, the only transportation available was by horse and carriage, not planes, trains or automobiles.
"There would be substantial periods when the Senate was not there to advise and consent on a presidential nomination," Edwards says. "The founding fathers didn't want there to be gaps in the administration of policy so they provided for recess appointments."
Today, in contrast, senators can get to Washington quickly. The nature of government, however, is also dramatically different.
Edwards notes that the founders could not have conceived of government of the scale that we have today. "The government is much larger now. There are many more people in appointed positions and so many more vacancies that occur," he says.
Edwards says that since the mid-1800s, there have been more than 600 recess appointments to civilian jobs and hundreds, perhaps thousands, more in the military. Even some Supreme Court justices were first recess-appointed. Chief Justice Earl Warren was recess-appointed after the sitting chief justice died in September 1953. Warren served in that capacity for six months before he was confirmed by the Senate in March 1954.
In modern times, three appeals courts have upheld the president's power to make mid-session recess appointments. In this case, however, the Court of Appeals reached a contrary conclusion, siding with the Noel Canning company.
Noel Francisco, the company's lawyer, contends that the importance of these appointments prove his point. "That's precisely why the recess appointments power was meant to be a narrow emergency power."
White House Counsel Kathryn Ruemmler disagrees. In an interview with NPR, she said that the way Senate Republicans managed to keep the Senate in session without actually handling any formal business proves her point; that the Senate sessions were nothing more than a "legal fiction."
"[The Senate] was not conducting any business and did not intend to conduct any business during these pro forma sessions," Ruemmler said. "It was solely employed, and members of the Senate have been quite clear about that, for the purpose of preventing the president from making recess appointments.
"It is not a bypass of the Senate confirmation process," she added. "It is a way for the president ... by express authority in the Constitution, to ensure that the laws are faithfully executed." That is something that she maintains cannot be done if many top federal agency positions are allowed to remain unfilled.
Ruemmler contends that if Senate Republicans prevail here, the recess appointment power will likely be dead for all practical purposes. The Senate, after all, could eat up every recess with pro forma sessions to prevent presidential appointments.
Noel Francisco readily concedes this point. "The fact of the matter is that in today's day and age, the Senate is virtually never incapable of providing advice and consent given modern transportation and communications," he says. "So, yes, the Senate can render itself perpetually available to provide advice and consent, and if it does so, the the president is not empowered to make a recess appointment.
A second question before the Supreme Court in this case asks when the vacancy must arise to trigger the president's recess appointment power.
The recess appointment clause says that the president may make appointments for vacancies "that may happen during the recess." Those opposing President Obama argue the president may only make recess appointments for vacancies that occur during a recess, as opposed to vacancies that exist at the time of a recess.
The lower court agreed on this point too, creating such a narrow time window as to make recess appointments practically impossible.
For now, it is President Obama who wants the ability to make these recess appointments, but the recess appointment power has been used by presidents from both sides of the aisle throughout the 20th century.
Edwards says that presidents have used this power more often in recent times. "Particularly since the 1980s," he says, "when Ronald Reagan made a number of intra-session appointments."
Edwards says that in a time of political polarization, the Senate and the president both are looking for political advantage and often resort to what seem to be arcane procedures.
Now the Supreme Court will weigh in on the question of recess appointments. On one side of the argument is the original intent of the founders. On the other is the pragmatic question of how to run a large modern government, and how that has been accomplished for the last century, and more.