On Monday January 13, the U.S. Supreme Court will hear oral argument in a major case testing the scope of presidential power.
At issue in National Labor Relations Board v. Noel Canning is President Barack Obama's controversial use of the recess appointments power in January 2012 to bypass the Senate confirmation process and add three new members to the National Labor Relations Board (NLRB). The controversy arose because Obama did not make those appointments when the Senate was technically in recess, but did so instead when the Senate was in session—Senate Republicans were then gaveling the body to order every few days for the precise purpose of denying the president his lawful ability to make such appointments. Among the issues before the Supreme Court is whether Obama's actions exceed his constitutional authority 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."
Perhaps unsurprisingly, the Obama administration has received support in the case from conservative legal experts who once served under President George W. Bush. Like Obama, Bush also made aggressive use of the recess appointments power in order to bypass what he saw as an obstructionist Senate.
What is surprising, however, is that Obama has also received strong support from a leading liberal organization, the Constitutional Accountability Center, a Washington think tank and law firm "dedicated to fulfilling the progressive promise of our Constitution's text and history."
According to a friend of the court brief submitted by the Constitutional Accountability Center on behalf of the federal government in Noel Canning, "crabbed and erroneous interpretations of the Recess Appointments Clause would undermine the scope of a presidential power that is fundamental to the proper operation of the federal government: the President's ability to make temporary appointments to Executive and Judicial Branch offices when the Senate is unavailable to provide its advice and consent."
That view is surprising because it stands in such marked contrast to previous progressive interpretations of the Recess Appointments Clause, most notably that of Democratic Sen. Ted Kennedy of Massachusetts. In 2003, Kennedy filed his own friend of the court brief when the federal courts heard a similar case dealing with President Bush's purported recess appointment of William H. Pryor to the U.S. Court of Appeals for the 11th Circuit, an appointment which Bush made while the Senate was on an intra-session break, not while it was in recess.
Among Kennedy's lawyers on that 2003 brief was Harvard Law School's Laurence Tribe, a leading liberal authority and one of Obama's old professors. "The President may not make recess appointments during intra-session Senate breaks," the Kennedy brief declared. If adopted by the Supreme Court, that position would invalidate the recess appointments made by both Bush and Obama.
In essence, next week's arguments in NLRB v. Noel Canning will feature two competing liberal takes on executive power. One, originally filed in opposition to George W. Bush, views the Recess Appointments Clause as a narrow grant of presidential authority. The other view, filed in support of Barack Obama, sees the clause as a broad affirmation of the president's power to shape national affairs.
We'll find out by the end of the term which one of these clashing views is able to command a majority on the current Supreme Court.