Amicus Brief: Recess Appointments Essential to Functioning Government

September 23, 2013

Weighing in on a major Supreme Court case that could tilt the nation's balance of powers, the Brennan Center for Justice at NYU School of Law said that preserving the president’s constitutional authority to make recess appointments is essential to maintaining equilibrium among the three branches of the federal government.

The Brennan Center amicus brief in the case National Labor Relations Board v. Noel Canning argues that, particularly in Washington's highly partisan and obstructionist environment, the president’s power to fill vacancies during congressional recesses is essential to the functioning of the government.

“This case has profound implications for one of the founding principles of our democracy, the separation of powers,” said Alicia Bannon, counsel for the Brennan Center’s Democracy Program. “Congress is already broken. Eviscerating the president’s recess appointment power would lead to even more gridlock and government obstruction.”

Bannon and other legal experts with the Brennan Center are available to discuss the filing and the broader issues of separation of powers at play in the case.

To schedule an interview, please contact Erik Opsal (erik.opsal@nyu.edu, 646-292-8356).

Background:

In recent years, the Senate, under both Democrats and Republicans, has engaged in increased obstruction when the opposing party controls the executive branch. This has included increasing abuses of the filibuster and recently, the use of pro forma sessions of Congress — where Congress is officially in session but where no legislative business takes place — to prevent the president from invoking the recess appointment power provided by the Constitution.

In January 2012, while Congress was convened only for a pro forma session, President Obama filled three vacancies on the National Labor Relations Board, enabling the quorum necessary for the Board to do its job and administer the National Labor Relations Act.

After the Board affirmed an order against the Noel Canning Corporation, the company filed suit in the United States Court of Appeals for the D.C. Circuit, arguing the Senate was not in recess when the president made the recess appointments to the Board, and thus the appointments were unconstitutional and invalid. The D.C. Circuit agreed, holding that the recess appointment power was limited to recesses between sessions of Congress, not recesses during Congressional sessions. 

The Brennan Center was represented by pro bono counsel Sidney S. Rosdeitcher and Jacob H. Hupart at Paul, Weiss, Rifkind, Wharton & Garrison LLP, and Burt Neuborne, founding legal director of the Brennan Center and Professor of Law at NYU Law School.