This past week during the oral argument in National Labor Relations Board v. Noel Canning, a solid majority on the U.S. Supreme Court seemed to agree that President Obama’s recess appointments to the Board in January 2012, while the Senate was in session, were inconsistent with the U.S. Constitution.  In fact, several of the justices offered biting criticism of the government’s argument articulated by U.S. Solicitor General Donald B. Verrilli, Jr.  In a twist of Shakespearean irony, it appears that the highest court in the land is about to declare that recess appointments made a president who campaigned on his expertise as a constitutional law professor, were unconstitutional.

At the heart of the case is a clause in the Constitution that states the President “shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.”  The facts of the case began when President Obama elected to make three recess appointments to the Board while the Senate was in continuous pro forma sessions.  Noel Canning, a Washington state bottling company, challenged the legality of the appointments after it received an unfavorable decision from the Board.  The employer contended that the Senate decides when it is in recess not the President and continuous pro forma Senate sessions pursuant to a unanimously passed Senate resolution is not a recess.  Thus, the three “recess” appointments to the Board were unconstitutional and the decision the Board rendered against Noel Canning was without the force of law.


During pro forma sessions the Senate convenes every three days and any business is conducted by unanimous consent.  During one such session, the Senate passed at the President’s request an extension of unemployment benefits.  Supreme Court justices from all points on the ideological spectrum expressed the view that the Congress determines for itself when it is in session, and that the executive branch does not have the authority to make that determination for a co-equal branch of government. 

Justice Elena Kagan, who was nominated by Obama said, “It really is the Senate’s job to determine whether they’re in recess or whether they’re not.”  Justice Anthony Kennedy, who is often the swing vote on many cases, said the administration’s argument would allow the President to act as if Congress is in recess at virtually any time, whether it be “a one-hour break, a one-day break, a three-day break…or a one-month break.”  Similarly, Justice Ruth Bader Ginsburg expressed the view that there needed to be a “limiting principle” to prevent the president from making recess appointments during short breaks.  According to Politico, “Even liberal Justice Stephen Breyer, who was perhaps most favorable to the president’s case, expressed puzzlement at the administration’s claim that Congress was actually in a lengthy recess at the time Obama acted.”

The Solicitor General argued that the appointments were necessary to circumvent an intransigent Congress and keep the government running.  No justice agreed with him and a few pointed out that the President has the authority to call Congress back into session.  

Furthermore, the truth is that there was no intransigence.  Obama circumvented the Senate’s role in the political appointment process by making two of the three nominations (one Republican nomination was pending confirmation for over a year) just before Christmas and then waiting  only a few weeks before announcing their recess appointment.  It was such a short turnaround that the two recent nominees did not even have enough time to submit to the Senate committee its basic questionnaire that seeks important background information to discover potential conflicts of interest. 

When  Obama decided to take this unlawful shortcut, he either willfully violated his duty to “preserve, protect and defend the Constitution of the United States” or was misled by incredibly shoddy legal advice, perhaps his own.  One way or another, the president’s judgment in this matter was deeply flawed and it appears the Supreme Court is about to tell him so. 

The Washington Post claimed that a court ruling “could invalidate hundreds of National Labor Relations Board rulings and set the agency back more than a year in its workload if [the President] loses.”  Considering the damage that the Board has inflicted on American workers and businesses with its pro-labor agenda, we can only hope this matter will slow the government agency’s effort to hurt job creators and reward the union bosses who bankrolled Obama’s political campaigns.

Wszolek is a spokesperson for the Workforce Fairness Institute (WFI).