Is A Recess Appointment Valid If The Senate Says It’s Not Really Gone?

In a tug of war between President Obama and Congress, a federal appeals court panel in Washington, D.C., will hear arguments Wednesday on the legality of Obama’s controversial recess appointments.

The White House says it was forced to install three new members of the National Labor Relations Board in January because of inaction by Senate Republicans. But those lawmakers argue the Senate wasn’t really in a recess at the time.

Let’s go back to that period nearly one year ago: It’s Jan. 6, 2012. An aide is talking in a nearly empty chamber. She’s reading a couple of lines that put Virginia Sen. Jim Webb, a Democrat, in charge.

Webb steps up, saying, “Under the previous order, the Senate stands adjourned until 11 a.m. on Tuesday, Jan. 10, 2012.” And then, he pounds the gavel.

No votes. No legislation. No nominations. And 30 seconds later, no more Senate.

Whether that day in January and 19 more like it constituted legitimate business in Congress is a question for the federal appeals court.

What Counts As Recess?

The U.S. Constitution says the president needs to get advice and consent from the Senate before filling certain jobs, unless the openings come up during a recess. It’s who defines recess that’s the problem.

Miguel Estrada, a Washington lawyer, is representing the views of dozens of Republican senators.

“The Constitution itself says that each house of Congress is the master of its own rules,” Estrada says — and “the master of its own rules” means the Senate is in charge.

Not so fast, says White House counsel Kathryn Ruemmler.

“Our view is that a pro forma session at which the Senate, by its own definition, is not conducting any business and is unavailable to provide advice and consent on the president’s nominees is, for all practical and functional purposes, in recess,” Ruemmler told NPR earlier this year.

The issue is being litigated in more than a dozen cases in federal courts all over the country. But Wednesday’s case comes from a Washington state company, Noel Canning, which bottles and distributes Pepsi-Cola products. The company is challenging an unfavorable decision by the National Labor Relations Board this year.

Big Implications

Noel Canning argues that the labor board can’t force it to sign off on a collective bargaining agreement with the Teamsters union. In fact, the company says, the NLRB wasn’t really fit to do business because three of its members were not appointed properly under the law.

The case is being closely watched by Lily Fu Claffee, the top lawyer at the U.S. Chamber of Commerce.

“The issue of whether the president’s recess appointments are valid was going to get litigated one way or another, and we, on behalf of the business community, wanted to make sure that it got litigated as soon as possible and that we had certainty as soon as possible,” Claffee says.

The Justice Department, which is arguing for the Obama administration, says the president was only fulfilling his constitutional responsibilities to keep government agencies running.

“If the president hadn’t done what he did … a really important agency responsible for enforcing workers’ rights in the workplace would have literally gone dark,” says Lynn Rhinehart, general counsel of the AFL-CIO. “It wouldn’t have had enough members to actually function, and it wouldn’t have been able to enforce the law.”

The appeals court ruling could have big consequences for labor and business. The NLRB has acted in more than 200 cases since its new members arrived in January. All of those decisions — and dozens more that the three new members of the NLRB make before their terms expire late in 2013 — will be under a cloud of uncertainty until the federal courts weigh in.

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