The nation's high court on Monday struggled with text and history during a constitutional showdown over the president's power to make recess appointments and the U.S. Senate's duty to give advice and consent.
After a 90-minute argument in National Labor Relations Board v. Noel Canning, the court appeared torn between the plain meaning of the words in the recess appointments clause and a contrary practice by presidents for more than 100 years.
The justices have agreed to answer three questions about the clause: whether the words "the Recess" mean that appointments may be made only between the two annual sessions of a Congress; whether vacancies that exist before a recess may be filled or only those happening during the recess, and whether the Senate is in recess when holding pro forma sessions during which, it says, no business will be conducted.
The controversy stems from a common labor dispute that prompted an appeal by Noel Canning of the labor board's decision that the company had committed an unfair labor practice. In its appeal, the Yakima, Washington-based, soft drink bottler had challenged the board's decision, arguing that the recess appointments of three board members were invalid.
Solicitor General Donald Verrilli Jr. argued that the purpose of the recess appointments clause-- to ensure the continued functioning of the government-- was better served by the government's arguments that those appointments may be made during a session, not only between the two sessions and that existing vacancies may be filled. He also argued that the Senate was in actual recess during the pro forma sessions that occurred between Jan. 3, 2012, and Jan. 23, 2012. The Senate, he said, called it a recess and said no business would be conducted.
Jones Day's Noel Francisco, representing Noel Canning, countered that the recess appointment power was a "contingent power" triggered when the Senate made the decision to recess. And it is the Senate's prerogative, and always has been, to define when it is in recess, argued Miguel Estrada of Gibson, Dunn & Crutcher, on behalf of Senate Republican Leader Mitch McConnell, an amicus party in the case.
We will have more later in the Supreme Court Brief.