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Research Report

SCOTUS and the Future of the Recess Appointment Power

Published: December 20, 2014

With government dysfunction at an all-time high, the Supreme Court will hear a case that could make things worse by effectively nullifying the president’s power to make recess appointments. Recess appointments have been used thousands of times throughout our nation’s history, and by nearly every president, to ensure the government functions effectively. The Court could dramatically reduce this power in National Labor Relations Board v. Noel Canning.

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In National Labor Relations Board v. Noel Canning, the Supreme Court will opine on a constitutional provision with important implications for the functioning of our democracy. At issue is the scope of the president’s power under the Constitution’s “Recess Appointments Clause,” through which the president can make temporary executive and judicial appointments during Senate recesses, without Senate confirmation. These temporary appointments expire either at the end of the Senate’s next session, or when a nominee is confirmed by the Senate and receives a commission from the president.

The recess appointment power has played an important role in our nation’s history by helping keep the government running smoothly when the Senate was unable to provide its advice and consent on nominations, for reasons ranging from lengthy holidays to minority obstruction through the filibuster. In a recent decision, the U.S. Court of Appeals for the D.C. Circuit interpreted the Recess Appointments Clause narrowly, dramatically limiting the president’s recess appointment power and undoing long-standing and settled expectations about its scope. If the D.C. Circuit’s decision is upheld by the Supreme Court, the loss of this important tool would profoundly alter the balance of power between the president and the Senate.

A complex case that raises knotty issues of constitutional interpretation — and defies easy ideological categorization — Noel Canning could upend generations of practice. If the Supreme Court adopts the D.C. Circuit’s reasoning, thousands of temporary appointments — from Thurgood Marshall to Alan Greenspan — would have been illegal. And vital agencies, such as the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC), would have faced lengthy periods without a quorum.

Though the risk of future Senate obstruction has been tempered by recent changes to the filibuster rules for presidential nominees (excluding Supreme Court justices), new hurdles to the confirmation process are already emerging. Likewise, a future Senate majority hostile to the president could dramatically impede the confirmation process for nominated executive officials and judges, regardless of their qualifications. As has been true throughout history, the Recess Appointments Clause thus plays an important role as a backstop to ensure functioning government. In Noel Canning, the Supreme Court will decide whether to preserve this role or to dramatically circumscribe it.