Now a court must decide whether the Constitution means what it says.
In 2011, the Noel Canning company, which bottles soft drinks in Yakima, Wash., was negotiating a labor contract with Teamsters Local 760. The union says it and the company reached a verbal agreement. The company disagrees. An administrative law judge sided with the union. On Feb. 8, after Obama’s disputed appointments, the NLRB upheld that decision and asked a federal court to enforce it. Noel Canning is asking the court to declare that the NLRB’s intervention in the dispute was unlawful because the board lacked a quorum until Obama made the recess appointments, which were invalid because the Senate was not in recess.
In defense of his controversial and legally questionable appointments, President Obama insists that they were made in complete compliance with the Constitution’s grant of such power to the president in Article II.
Is the president’s interpretation of Article II correct? To answer that question, one must first look to the text being cited as a justification for the appointments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The plain language of that clause authorizes recess appointments. If the Senate is in recess, then the president is within the sphere of his constitutionally enumerated powers to fill a vacancy that will be valid until the end of the next congressional session.
An additional analysis of the black letter of Article II makes it clear that the Senate must already be in recess in order for an appointment made in its absence to be valid.
There is no provision in the Constitution even hinting at the right of the president to use trickery to create artificial breaks in congressional sessions in order to forcibly impose his will in defiance of express senatorial opposition to it.
Not surprisingly, the Obama Department of Justice (DOJ) defended the president’s appointments. In a memo dated January 6, 2012, DOJ officials cited various scholarly and bureaucratic interpretations of the so-called Recess Appointment Clause of Article II in order to buttress their opinion:
This Office has consistently advised that “a recess during a session of the Senate, at least if it is sufficient length, can be a ‘Recess’ within the meaning of the Recess Appointments Clause” during which the President may exercise his power to fill vacant offices.
Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’
Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period.
In summary, the Department of Justice memo argues that the business conducted by the Senate between January 3 and 23 was conducted pro forma and thus does not qualify as an interruption of the recess begun by the vote to adjourn taken on December 17, 2011.