Democrats Reap the Fruits of Filibuster Fecklessness at the D.C. Circuit Court

On Friday, judges ruled that Obama appointments to the NLRB were unconstitutional. After years of Bush-era grandstanding, Democrats have no one to blame but themselves.

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Molly Riley/Reuters

In the Seventh Psalm, the ancient poet rejoices over his discomfited enemy: "He made a pit, and digged it," verse 15 exults, "and is fallen into the ditch which he made."

Masters of the pratfall, the Senate Democrats in 24 hours managed to fall twice into a pit that they made and digged themselves. Thursday evening, they approved a puny program of "filibuster reform" that will permit the Republican minority enormous leeway to obstruct majority measures and presidential appointments. Friday morning, they learned that a filibuster tactic they themselves created -- the "pro forma" session -- had now deprived the nation of a National Labor Relations Board. The stinging loss was handed down by a court where conservative dominance has been maintained for the past four years by aggressive use of the filibuster.

The D.C. Circuit's decision in Noel Canning v. National Labor Relations Board dealt with a difficult constitutional issue. There are strong arguments that the administration's position was wrong. But what is striking about Friday's decision is the panel's insistence on reaching the broadest result possible -- one that will make the problem of the filibuster even more difficult for the executive branch to deal with.

The precise issue in Canning was whether the president could make a "recess appointment" to the NLRB even though the Senate was holding "pro forma" sessions every three days. Here we delve into oracular text: the "recess appointments" clause of Article II § 2 cl. 3 says that "[t]he 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." The idea is simple: For significant government appointments, the Constitution requires Senate confirmation; but the Senate isn't always meeting, and in a pinch the executive needs to be able to fill a vacancy and ask for approval later. 

The details, however, are profoundly difficult, and have been debated since the Washington Adminstration. What is "the recess of the Senate"? Does it mean whenever the Senate goes home for a few days, or only during the breaks between formal sessions? Second, when an office opens up while the Senate is in session, but the Senate goes into "recess" without confirming a successor, does that vacancy "happen" during the recess?

The Republican minority in the Senate hates the NLRB, whose job it is to make sure workers get a fair chance to bargain with their employers. So from 2010 to early 2012, the Republican minority simply filibustered all nominations to the board, with the result that the NLRB fell below its required quorum of three members. In late 2011, Republicans feared that Obama would make recess appointments when they went home for Christmas. They didn't control the Senate, and so to prevent the leadership from "recessing," they used their control of the House to engage in a constitutional trick. Under Article I § 5 cl. 3, "Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days ...." The House leadership refused to consent to a Senate adjournment, so every three days, one member who lived nearby showed up, convened the body with all the élan of Ben Stein in Ferris Bueller's Day Off, and then immediately adjourned. Senate Majority Leader Harry Reid was unhappy -- but the "pro forma sessions" trick was, in fact, one he himself had created during the George W. Bush Administration, as a way of blocking Bush's use of the recess power.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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