The Supreme Court's ruling today in NLRB v Noel this morning was a setback in the president's Constitutional authority to make recess appointments when a minority for all intents and purposes renders the Senate incapable of conducting business but forces to stay in session. The court unanimously ruled that when the Senate is in session - even in pro forma session not actually working - the President cannot make recess appointments.
The decision, however, has minimal practical implications since the Senate rule change that requires only a majority vote to vote on and confirm the President's executive branch nominees. After all, all the NLRB members in question have since been formally confirmed by the Senate.
But the real drama within the court ensued inside the decision itself, as the controlling opinion ruthlessly taunted and mocked Justice Antonin Scalia's concurrence. You see, although Scalia agreed with the final outcome of this case, he posited the additional theory that presidents do not have the authority to even name recess appointments during breaks within a session of the Senate (intra-session recess); only during the time between two formal sessions of the Senate (inter-session recess). In addition, Scalia said that the vacancy for which the president is making a recess appointment must itself occur within that period between two formal sessions of the Senate. Put in other words, Scalia wanted to end the recess appointment power for all practical intents and purposes.
The controlling opinion of the Court, however, held otherwise. It recognized not only the president's authority to make recess appointments during an intra-session recess even if vacancies did not rise during a recess, but also the president's authority to appoint on a much shorter term in a national emergency.
To say that the controlling opinion of the Court, written by Justice Breyer and joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan takes issue with Scalia's crackpot theory would be an understatement. The controlling opinion of the Court was almost written more to deliver a beat-down to Scalia than to decide the question at hand. Breyer was ruthless in mocking and taunting the chief Tea Partier on the bench.
At question is Article II, Section 2 of the Constitution, which grants the president the recess appointment power: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.
Under Scalia's crackpot theory, this means that the president cannot fill vacancies that did not begin during a inter-session recess. The majority on the Court calls bullpucky on that, saying an existing vacancy does not magically stop 'happening' when the Senate goes on recess.
The greater interpretive problem is determining how long a recess must be in order to fall within the Clause. Is a break of a week, or a day, or an hour too short to count as a “recess”? The Clause itself does not say. And JUSTICE SCALIA claims that this silence itself shows that the Framers intended the Clause to apply only to an inter-session recess.
We disagree. [...] The Framers’ lack of clairvoyance on that point is not dispositive. Unlike JUSTICE SCALIA, we think it most consistent with our constitutional structure to presume that the Framers would have allowed intra-session recess appointments where there was a long history of such practice.
The good thing about Supreme Court decisions is that they are written in plain English, not legalese. Which means that it is patently clear when when the Court is smacking around one of its own. The next smack comes in the form of you-don't-know-what-you're-talking-about:
...though JUSTICE SCALIA says that the “notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting,” he must immediately concede (in a footnote) that the President “can make recess appointments during any break between sessions, no matter how short.” Post, at 11, 15, n. 4 (emphasis added).
The "emphasis added" part was written in by the Court, not me. The majority is not impressed by Scalia's footnote trick. Translation: yeah we see what you are doing you transparent hypocritical airhead.
But it turns out that the majority was just getting started. In a few pages after the above, they rip into Scalia's legendary mind trick by which he is able to read the minds of our deceased founders. Scalia attempts to think up what James Madison believed on this matter, and to say the least, that petulance did not sit well with Justice Breyer and the controlling opinion.
James Madison—as familiar as anyone with the workings of the Constitutional Convention—appointed Theodore Gaillard to replace a district judge who had left office before a recess began. [...] He also made recess appointments to “territorial” United States attorney and marshal positions, both of which had been created when the Senate was in session more than two years before. [...] JUSTICE SCALIA refers to “written evidence of Madison’s own beliefs,” ... but in fact we have no direct evidence of what President Madison believed. We only know that he declined to make one appointment to a pre-recess vacancy after his Secretary of War advised him that he lacked the power. On the other hand, he did apparently make at least five other appointments to pre-recess vacancies, as JUSTICE SCALIA does not dispute.
I am not terribly familiar with judicial courtship lingo, but I believe the bold part above is SCOTUS-speak for "Neener, neener."
And then, the Court's majority brings the hammer down. Scalia's logic would essentially end the president's Constitutional power of recess appointments, and the majority saw through this.
JUSTICE SCALIA would render illegitimate thousands of recess appointments reaching all the way back to the founding era. More than that: Calling the Clause an
“anachronism,” he would basically read it out of the Constitution. ... He performs this act of judicial excision in the name of liberty. We fail to see how excising the Recess Appointments Clause preserves freedom.
Boom. Mic drop.
Nothing can be more damning for a self-congratulatory Constitutional "originalist" than to be told by his peers on the Supreme Court that he's one one trying to shred... err, 'excise' the Constitution. Ouch.
Scalia is already the butt of jokes as federal courts, one after another, taunt him by using his own logic in a dissent to legalize marriage equality. And now, it seems that his own colleagues can no longer take his crap or resist the temptation to give him a beatdown, in writing. My liberal heart bleeds for the poor bastard. Just kiddin'.