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Noel Canning, Polarization, and Institutional Gridlock

U.S. President Barack Obama walks across Lafayette Park back to the White House after announcing his choice of former Procter & Gamble Chief Executive Bob McDonald (R), an Army veteran, as his nominee to be the next secretary of veterans affairs at the VA in Washington June 30, 2014. At left is Vice President Joe Biden. If confirmed by the Senate, McDonald would be tasked with repairing the Veterans Administration after widespread evidence of delays in military veterans getting healthcare at VA facilities.

John Hudak recently posted a helpful discussion of NLRB v. Noel Canning on the FixGov Blog. This is the case in which the Supreme Court unanimously decided that President Obama exceeded his authority when he placed three nominees on the NLRB while the Senate was in a de facto but not de jure recess (the Senate was not and could not conduct any business but was gaveling itself to order and declaring itself in session every third day). Hudak notes that although Obama suffered a clear defeat, the authority of the President to make recess appointments regardless of when vacancies had arisen was affirmed. (The most conservative reading of the Constitution’s recess appointment clause, accepted by four Justices, would have applied it only to positions that became vacant during a recess.) Hudak also sees in the case the effective operation of our constitutional system of checks and balances and some reason to believe that House Speaker Boehner will have trouble making out a case that Obama has exceeded his executive powers in areas which the Constitution does not address with comparable specificity.

These are not, however, the only lessons that may be drawn from Noel Canning. The case also provides an occasion to reflect on the larger issue that underlies it; namely, the breakdown of comity between political parties and the branches of government. The Senate typically accords Presidents broad authority to appoint administrators of their choice to government boards and agencies. Thus a James Watt was confirmed to head the Department of the Interior and a Clarence Thomas to head the EEOC, although the policies each seemed likely to advance were anathema to most Senate Democrats. True, confirmation of a President’s appointment has never been automatic, especially where the President and the Senate majority are of different parties. Not only have there been instances where even proposed cabinet members have been opposed and rejected (think John Tower), but it has not been uncommon for a Senator to invoke one of the body's many informal privileges to delay an appointment in an effort to persuade a President that a confirmation battle isn't worth fighting or to secure some political concession that may or may not be related to the position the President sought to fill. But filibustering nominations simply because a nominee is likely to advance a President's policy preferences or in order to prevent an agency from carrying out its essential functions is almost unheard of, if it has happened at all. Yet this appears to be the story behind the Senate Republicans’ efforts to prevent confirmation votes on Obama's proposed NLRB appointees. Opposition was stoked not because of perceived deficiencies of the nominees but by a desire to deny the NLRB the quorum it needed to function. Moreover, this tactic was not limited to the NLRB, but was used with the intent of crippling other agencies, like the newly authorized federal Consumer Financial Protection Bureau. It was against this background that Noel Canning arose.

Presidents faced with an intransigent Senate yet committed to a first choice nominee have been able to circumvent the Senate approval process by waiting until the Senate was in recess and then making an appointment. These appointments, called recess appointments, allow the nominee to serve until the end of the two year legislative session with the same authority as if he/she had been duly confirmed. To prevent the NLRB’s vacancies from being filled in this way, the Senate’s Republican leaders, adopting a tactic the Democrats had used in the last years of the Bush administration, took advantage of Senate rules to prevent the Senate from formally recessing. They claimed that it did not matter that the Senate took an extended break from its ordinary business indistinguishable from the familiar recess so long as one of their members was available to gavel the Senate to order every third day. As it turned out, the Republican leadership was right in this judgment.

Yet even given the Supreme Court's unanimous decision invalidating his appointments, it is a mistake to think that Obama's attempt to use the Senate’s break from business as an opportunity to make recess appointments is an example of blatant lawlessness. The right way to perceive this dispute is that Obama was making a claim that substance (the Senate was unable to take actions on nominations) rather than form (the Senate had not declared a recess) defined the limits of the President’s recess appointment authority. The dispute was resolved—as such disputes should be in our country—by a definitive Supreme Court decision. This decision, although in retrospect it may appear clear, was not, however, preordained or unequivocally determined by the text of the Constitution. It would have been easy to write a reasoned opinion finding that the President could make recess appointments when the claim that the Senate was available for business was a sham.

With the changes the Senate Democrats made in the rules regarding filibustering nominations, Noel Canning matters little when the President's party controls the Senate, although it has potentially greater import if the party opposing the President is in control. What matters more is what the case tells us about the state of politics today and its implications for our nation. The case would not have arisen without a partisan-driven erosion of the general understanding that Presidents may populate the executive branch with people committed to advancing their policy preferences and what one might have thought to be the universal acknowledgment that federal agencies should either be allowed to function in accord with their legal mandate or the law governing them should be changed. These understandings have been widespread because they are fundamental aspects of what it means to respect the outcomes of elections in a democracy.

The decision in Noel Canning is not to be regretted, even by supporters of the Obama administration. Although the case might have come out differently, the majority opinion is a sensible reading of what the Constitution, as illuminated by longstanding historical practice, provides. Moreover, the Court's decision to opt for form over substance is defensible and wise, for it provides a valuable bright line for determining when the Senate is in recess. But the willingness of partisans to overturn reasonable, once taken for granted, understandings of appropriate grounds for rejecting Presidential nominees is a cause for regret—and concern. There is a difference between opposing an administration’s policies and attempting to sabotage its ability to govern. If Obama crossed one line in pushing the limits of his recess appointment authority, the Senate minority appears to have crossed a far more consequential line in deciding when a filibuster of executive branch nominations is appropriate.

  • Richard O. Lempert is the University of Michigan's Eric Stein Distinguished University Professor of Law and Sociology emeritus. He is a nonresident senior fellow in Governence Studies at the Brookings Institution. From June 2008 until July 2011, he served as chief scientist in the Human Factors/Behavioral Sciences Division of the Science and Technology Directorate in the Department of Homeland Security; and from June 2002 through May 2006, he took leave from the University of Michigan to serve as the division director for the Social and Economic Sciences at the National Science Foundation.

    Currently he does business as RLempert Consulting, LLC. He is an elected member of the American Academy of Arts and Sciences, past president of the Law & Society Association and current secretary for Section K (Sociology, Political Science and Economics) of the American Association for the Advancement of Science. His research interests are broad, encompassing, among other things, matters related to national security, government bureaucracy, juries, race relations and social science methods.

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