National Labor Relations Board v. Noel Canning Corporation

 
Table of Cited Authorities:
New York School of Law, Washington Post, Brief of Respondent No. 1-47, Brief of Petitioner No. 1-47, The United States Constitution, Senate.gov, The Presidents Power Case Made Simple, Canning v. NLRB, The Heritage Foundation,
Statement of Argument:
The NLRB is wrong to appeal, because the recess appointments to the NLRB are unconstitutional due to the fact that there was not a quorum.  The NLRB ruling against the Noel Canning Corporation is invalid because the recess appointments are lawfully wrong. Therefore, the NLRB shall remain with two vacant seats until congress is in recess and should abide by the original ruling of Canning v. National Labor Relations Board.
 
Argument:
“Making recess appointments when the Senate isn’t in recess is neither rational nor moderate. It’s a raw misuse of executive power by a president whose love of government is his most vulnerable spot with the electorate.” This quote by John Podhoretz, a former presidential speechwriter, stresses the importance of limiting the president from gaining too much power. By allowing the president to fill up vaccines during an intersession, a recess that occurs between annual sessions of the senate, the President has defied the Recess Appointment Clause of Article 2 which provides that the president shall have the power to fill up all vaccines that may happen during the recess of a senate, by granting Commissions which shall expire at the end of the very next session.  Though the apparent “recess” appeared during the Senate’s Session, and the relevant vacancies all predated that Session, such that these Sessions violated both of the Clause’s. Not to mention, that the President made these appointments during a three-day break. Thus, making the appointments lawfully wrong.  On January 23, 2012 the Senate held pro forma sessions at the time, which no business was organized however the Senate was not adjourned for more than three days. The President conducted that the Senate was in recess, by which he defied these pro forma sessions, which gives the president the authority to exercise his recess- appointments power during the period.  The President’s recess-appointments power may not be exercised when the Senate is convening every three days in pro forma sessions.
On January 2012 as the end of the first session became clear, President Obama filled three vacancies on the National Labor Relations Board (NLRB) through recess appointments. Under the Constitution’s Recess Appointments Clause, “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 occurring Session.” U.S. Const. art II, § 2, cl. 3. The three NLRB appointments had a quorum, allowing them to conduct business.  However on January 23, 2012, the Senate had conducted a pro forma session, which are meetings set in place in form only.’ As used in parliamentary law, it refers to a legislative session held not to conduct business but to satisfy a constitutional provision that neither house may adjourn for longer than a certain time without the other house’s consent.  During this time no business was coordinated but the Senate had not been adjourned for as long as three days. While congress was in a pro forma session, President Obama filled three vacancies on the National Labor Relation Board.
Succeeding the recess appointments, the National Labor Relations Board conducted a ruling that Canning,  which is a Pepsi bottling firm in Washington State, illegally failed to enter a collective bargaining agreement with the Teamsters. The company filed a Petition for Review in the United States Court of Appeals for the D.C. Circuit, competing with the validity of the “recess” appointments, and thus the Board’s quorum. The three-judge panel found that the recess appointments to the National Labor relations Board were unconstitutional, and therefore it could not lawfully be conducted, as it did not have a quorum. As Canning’s petition challenged the validity of using recess appointments during pro forma sessions of the Senate, the D.C. Circuit sent out a more moving decision, ruling that the President can only exercise his recess appointment power during intersession recesses that happen between formal sessions of Congress, and not during intersession recesses that occur between a session of Congress, The Court further held that the President may only use recess appointments for vacancies that  come up  during the recess, and not for  any positions that became vacant while Congress was in session and remained vacant when a recess  began occurring The National Labor Relations Board petitioned the U.S. Supreme Court for certiorari, and the Supreme Court agreed to take the case in June 2013.
 
Many different questions have arisen whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess. On July 24 of this year the U.S. Supreme Court agreed to hear the federal government’s challenge to a January 2013 decision by the Court of Appeals for the D.C. Circuit that appointments to the National Labor Relations Board made by President in January 2012 during a purported Senate recess were unconstitutional. The interpretation offered by the  President’s Administration would provide “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.” It concluded, “This cannot be the law.” The question that the Supreme Court will answer is did President Obama exceeded his constitutional authority by making appointments while the Senate was on break last year. The court will also answer a narrower question whether the president can make appointments when the Senate is holding pro forma sessions. If in favor of the President it could seem like a power grab. Which relates to the whole topic of is President Obama exceeding his authority.
The narrower question that the Supreme Court must answer is whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions. According to The New York School of Law the Senate, under both Democrats and Republicans, has engaged in increased obstruction when the opposing party controls the executive branch. This has included increasing abuses of the filibuster, which is any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions and recently, the use of pro forma sessions of Congress where Congress is officially in session but where no legislative business takes place to prevent the president from invoking the recess appointment power provided by the Constitution.  Finally, the court held that the existence of an intersession recess can be located by the sine die adjournment of the Senate. Sine die which means “without day,” sine die is a term used to describe an adjournment in which the Senate has not set a day for its next meeting  and is, therefore, not scheduled to meet again until the day set by the Constitution or by law for its next session to begin .These adjournments are the regular means by which Congress ends a session and are generally agreed to by both the House and the Senate through a recurring resolution that explicitly characterizes the adjournment as “sine die.
 
The court stated that “it has long been the practice of the Senate, dating back to the first Congress, to conclude its sessions and enter ‘the Recess’ with an adjournment sine die. The decision would appear to suggest that a sine die adjournment is necessary to cause the President’s recess authority. The court expressly held that because the Senate did not adjourn sine die, it did not enter ‘the Recess’ between the first and second Sessions of the .Congress. Notably, the Court made it apparent that when the Senate failed to adjourn sine die by resolution, and instead remains in session until the start of the next session of Congress, the previous session “expires at the same time with the beginning of the” next session., It would show that under Noel Canning the President’s recess authority is triggered only during an intersession recess initiated pursuant to a sine die adjournment of the Senate. Which states that the President’s recess-appointment power may not be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.
Allowing the president to make recess appointments during intrasessions, extends the power of the executive branch. The President was not expected by the Framers to gain so much power. They relied on the legislative branch to be the power house. By allowing the President to make recess appointments during intrasessions, we are dismissing a check put on the executive branch. The more rights we give to the executive branch are rights that we will never get back. The government will become too strong if the people like, Noel Canning, don’t try to put a stop to this. America will become what the Farmers of the Constitution tried their hardest to prevent: a tyranny. This may seem like an extreme conclusion but small steps like this are what lead to bigger disasters.
 
Conclusion:
According to Scoutosblog.com In its history, the Supreme Court is called into a controversy that goes to the heart of the division of powers among the branches of the national government. With its power to interpret the meaning of the Constitution, exercised since 1803, the Court is in a position and set to overrule the actions of the other two branches of government.  Overruling Congress happens far more often than overruling the President, but that, too, can happen.  The Court will soon be considering whether to do that again in a case of deep significance for President Obama, and for his successors in the White House. The National Labor Relations Board v. Noel Canning Corporation could change the appointment power of the president and his successors. The Constitution, from its very beginning in 1789, has stated in Article Two controlling what is exactly the presidency authority “to fill up all vacancies that may happen during the recess of the Senate, by conducting commissions which will expire at the end of their next session.”  The Noel Canning case asks the Supreme Court to settle when the Senate is allowed to be in recess, and when vacancies happen so that the President can fill them. The Recess Appointments Clause in the Constitution was important in the national government’s beginning years, because the travel from one location to another was very time consuming, and the Senate might not always be in Washington and thus able to act on presidential appointments, and yet the government could not function with official positions vacant.  There is no controversy that the clause is still very necessary, even though travel is much easier in this time period unlike the past, but the Senate does take recesses and so might not be available to act.. But there is disagreement about when the Senate is in recess, and when the temporary appointment powers of the President can become available. The D.C Circuit Court , ruled that the President can only exercise his recess appointment power during intersession recesses that occur between formal sessions of Congress, and not during intersession recesses that occur within a session of Congress, despite lengthy historical practice to the contrary. The Court further held that the President may only use recess appointments for vacancies that arose during the recess, and not for positions that became vacant while Congress was in session and remained vacant when a recess occurred. The National Labor Relations Board petitioned the U.S. Supreme Court for certiorari, and the Supreme Court agreed to take the case in June 2013. If the President is to fill up vaccines during an intersession, a recess that occurs between annual sessions of the senate, the president has defied the Recess Appointment Clause of Article 2 which provides that the president shall have the power to fill up all vaccines that may happen during the recess of a senate, by granting Commissions which shall expire at the end of the very next session. Therefore the National Labor Board is lawfully wrong under Article Two of the Recess Appointment Clause. Due to the fact that there was no quorum which makes the appeal unconstitutional. Therefore, the D.C Circuit Court ruling should remain as is and as well as the two vacant seats until congress is in recess and should abide by the original ruling of Canning v. National Labor Relations Board.