BLOCKED

06.26.14

Deregulators Lost at the Supreme Court When It Comes to Blocking Presidential Appointees

While the Court reprimanded Obama for the timing of three recess appointments, it scaled back an earlier ruling that would’ve let Congress gum up the regulatory state.

The champagne corks should be popping, and the bubbly flowing, in federal agencies and the White House today.  In a case called Noel Canning v. NLRB (PDF), the Supreme Court ratified a broad view of the President’s power to make “recess” appointments without Senate confirmation.  While it invalidated three appointments to the National Labor Relations Board (NLRB), it dramatically scaled back an earlier ruling that would have limited the president far more.

But the decision’s real impact isn’t on the balance of powers between Congress and the executive. Rather, the big losers today are regulated entities trying to stay the hand of federal administrative agencies. The real losers, that is, are the proponents of deregulation that have sought since the early 1980s to gum up the regulatory state.

Noel Canning comes out of the dysfunction surrounding appointments to the five-member NLRB.  Senate nominations and confirmations to the Board, which used to be considered in bipartisan bundles, had ground to a halt in the teeth of Republican opposition. This left the Board unable to resolve labor disputes. Similarly, Republican opposition to a presidential nomination threatened to derail the fledgling Consumer Finance Protection Bureau (CFPB) and has derailed the Election Assistance Commission (EAC).

Such opposition, of course, reflects anti-regulatory sentiment—and not Republican legislators’ view of the Constitution. Over in the House, John Boehner is (without discernable irony) threatening to file a constitutional challenge Obama for not “faithfully executing the laws”. Of course, Republican opposition to Richard Cordray’s appointment, to NLRB appointments, and to Election Assistance Commission appointments are important impediments to executing the law—which is of course their point.

When recess appointments to the NRLB were challenged, the Court of Appeals for the DC Circuit issued a sweeping ruling to the effect that the recess appointment power could be used only if two conditions were met. First, the only “recess” that counted was the one that started at the end of a Senate session. So-called “intra-sessional” recesses that occur through the year weren’t to count.  Second, the circuit court went further than the case required to hold that the recess also had to have first occurred during the recess, not beforehand.  These limits would have rendered illegal literally thousands of appointments made over the twentieth century by presidents of both allegiances.

Justice Breyer’s opinion for the five members of the Court rejected both these limitations.  Although Breyer ruled against the administration, he did so on narrow grounds: When the Senate means in pro forma sessions during a recess, these serve to break up the recess into small fragments in which the recess appointment power is unavailable.

On the meaning of “recess” and the timing of vacancies, the majority opinion rightly focused on ambiguity in the Recess Appointment Clause’s text—text Justice Scalia’s dissenting opinion needed to strain mightily over dozens of pages to show was clear beyond doubt. Breyer also relied on presidential practice going back to James Madison to understand how the political branches had reached stable compromises and workable arrangements.  This focus on the practical necessities of compromise in politics is in stark contrast to recent Supreme Court opinions on Congress-White House fights that have sounded in a more mechanical, formalistic, and text-bound register (PDF).  And one puzzle emerging from the opinion is why Justice Kennedy, having joined that mechanical and formalist opinion, in Noel Canning switched his vote toward a more pragmatic view.

One important consequence of preserving the president’s broad recess appointment authority is that it will be harder for the Senate to gum up, even temporarily, the workings of agencies like the NLRB and the CFPB.  Many agencies, such as the NLRB and the FEC, have multimember boards that require a quorum to operate.  Even a delay in appointments can derail ongoing investigations and regulatory efforts. So even though both Democratic and Republican presidents have used recess appointments, it’s the pro-regulation president (i.e., Democrats) that usually has more riding on that power than the anti-regulation executive.

Just as the Court’s opinion is especially important to presidents who want to keep regulatory agencies on track, it is bad news for regulated companies that wanted to throw off agencies such as the NLRB and the CFPB.

What of the balance of powers between Congress and the president?  In a dissenting opinion for the four conservatives, Justice Scalia condemns the Court for “aggrandizing the Presidency” and “undermining respect for the separation of powers.”

This is implausible. If Congress has lost ground to the president, it has never been for want of legal authority.  To the contrary, as the debt ceiling debacle amply illustrates, legislators have ample tools to gum up presidential plans—but only if they choose to use them, and if public opinion allows.

So if you’re worried about the Separation of Powers, don’t be: The balance of power between the President and Congress depends largely on the transient political factors.  True, the Court has made forays into it over the last two decades, invalidating the legislative veto here or enlarging presidential removal power there (PDF).  But these occasional, somewhat arbitrary bouts of judicial intervention have not changed interbranch relations in any substantial way. By and large, legislators and presidents have simply bargained or fought their way around the occasional judicial impediment So don’t expect Boehner’s proposed legal challenge to dissipate soon.

So in the wake of today’s opinion, it may be that the Senate will simply hold more pro forma sessions, thus stymying recess appointments. Or, more likely, the Senate won’t always have the political will to hold pro forma sessions solely for the purpose of obstructing regulators. In the vast majority of cases where the Senate’s attention is elsewhere focused, today’s decision will have force, so recess appointments will in fact proceed. And when the Senate does muster the will to block a nominee, Justice Breyer’s opinion sketches an argument for emergency presidential appointments.

Today’s opinion won’t stop politicians making silly claims based on the Constitution. But its refusal to allow deregulation via obstructionism, and its embrace of negotiation and compromise, are to be welcome in a time of poisonous and corrosive conflict.