The Solicitor General urged the Supreme Court to reverse the D.C. The Obama Administration (and many legal experts, Democrats and Republicans alike) reacted with alarm, noting that this decision could void not only 300 NLRB decisions issued since the appointments were made, but could also call into question the more than 500 recess appointments made during intrasession recesses-3 cabinet secretaries, 5 Circuit Court judges, 10 District Court judges, a CIA Director, a Federal Reserve Chairman, and numerous members of multi-member boards like the NLRB. (Two of the 3 judges went even further, saying that presidents could only fill vacancies that arose during that same recess.) Court of Appeals sided with Noel Canning and ruled that presidents may avoid the usual Senate confirmation process only during recesses between formal sessions of Congress, which generally occur once a year. (Article I, Section 5, provides that “either House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days …”) In January of 2012, Obama decided to challenge the new tactic by declaring the pro forma sessions a sham and appointing the three NLRB members.Īll 3 judges on the D.C. Under President Obama, Republicans turned the tables by using the power of the House to block the Senate from adjourning for more than three days. Senate Democrats repeated the move for the rest of the Bush presidency, and Bush did not challenge it. The idea was that the novel tactic would legally break up the long recess into a series of short ones that Majority Leader Harry Reid-now a supporter of Obama’s recess appointees–believed to be too brief for recess appointments. Instead, they held pro forma sessions, meaning a senator came into the nearly empty chamber every third day, banged the gavel, and went home. Hoping to block President Bush from making any more unilateral appointments, the Senate did not formally recess before going home for Thanksgiving. Recess appointments–and preventing them–gained prominence in 2007 when Democrats took control of the Senate. Noel Canning argued that the recess appointments were not valid, so the five-member NLRB lacked a quorum to issue any rulings, including the adverse one against the company. (The company had refused to sign a labor contract it had agreed to orally, thereby violating the National Labor Relations Act.) The basis for Noel Canning’s suit was that three members of the NLRB were appointed by President Obama during “recesses” when the Senate was actually meeting in pro forma (official but not legislative) sessions, convening for a few minutes every three days. Noel Canning, a Pepsi-Cola bottling company in Yakima, Washington, challenged a National Labor Relations Board ruling against the company in a labor dispute. “ shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law… The President shall have power 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.” Written at a time when it could take weeks for members of Congress to get to the capital, Article II, section 2 of the Constitution allows presidents to fill vacancies temporarily during recesses for positions that would otherwise require Senate confirmation: Supreme Court will hear a much-watched case interpreting the president’s appointment power.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |