Recess appointments case shows limits of audacity

President Barack Obama had options.

In early 2012, stymied by Republican obstruction of his nominees to federal agencies and courts, the president was frustrated. Democrats didn’t have enough votes to reach the 60-vote threshold to proceed to votes on nominees. So Obama decided he’d make use of recess appointments, temporary commissions allowed under Article 2, Section 2 of the Constitution, that last until the end of the next session of Congress.

Unfortunately for the president, there was no recess, by anybody’s definition.

Instead of following the usual procedure, and adjourning sine die, the Senate in December 2011 and January 2012 followed a procedure invented during the George W. Bush administration by Nevada’s own Senate Majority Leader Harry Reid. Every three days, the Senate would be called into a brief pro forma session. The intent — as it was under Bush — was to prevent the president from making any recess appointments by preventing a recess from occurring.

But Obama did it anyway, and Reid — typically a vociferous defender of the legislative prerogative — raised no objections. Three people were appointed to the National Labor Relations Board, and Richard Cordray was named director of the Consumer Financial Protection Bureau.

It didn’t have to be that way, of course. The president could have sought to compromise with Republicans on mutually agreeable nominees. If that wasn’t possible, he could have made use of Article 2, Section 3, which allows the president to adjourn Congress to a date of his choosing if the House and Senate disagree as to the time of their adjournments. (The Senate would definitely have been in a recess in that event.) Or, the Senate could simply have changed the rules for filibusters, allowing for the approval of nominees with a simple majority. (This, ultimately, is what Reid led in the Senate in doing last month; presidential appointments have been moving smoothly ever since.)

Instead, Obama simply made the appointments. And therein, he created grounds for litigation and, perhaps, a serious erosion of the powers of the presidency.

The Supreme Court on Monday heard arguments in the case of Noel Canning v. National Labor Relations Board, an appeal that argues, in part, that the NLRB could not affirm a finding that federal labor laws were violated because it didn’t have a proper quorum, because three of the members were improperly appointed by Obama.

And the Court of Appeals for the D.C. Circuit has agreed. But a three-judge panel went even further, arguing that the constitutional provision in question — the Recess Appointment Clause — only applies during “the Recess” between sessions of Congress, not any period of vacation or time off during a particular session. “As a matter of cold, unadorned logic, it makes no sense to adopt the [NLRB’s] proposition that when the Framers said, ‘the Recess,’ what they really meant was ‘a recess.’ This is not an insignificant distinction. In the end, it makes all the difference,” the ruling reads.

Moreover, the circuit court panel held that only vacancies in office that actually take place during the recess between congressional sessions may be filled by recess appointments, not posts that happen to be vacant when the recess begins. That’s a significant departure from modern practice, but entirely consistent with how early presidents and Congresses interpreted the clause.

If the Supreme Court agrees, future presidents will be severely limited in what offices they may fill by recess appointment, and when, all because Obama chose the least constitutional course available, and because the legislative branch — and Reid in particular — raised no objection. And while the new simple-majority-for-appointments rule in the Senate may have made this dispute moot for now, rules can change. It’s much harder to change the Constitution.

There are undoubtedly some people very nervously awaiting the Supreme Court’s ruling in this case. It certainly didn’t have to be this way.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 387-5276 or SSebelius@reviewjournal.com.