by Mitch Kokai
Senior Political Analyst, John Locke Foundation
This disjunction — the president shall nominate, but the Senate does not have to confirm — activates the very sort of structural bulwarks that the Framers hardwired into the Constitution. The Supreme Court’s unanimous 2014 decision in National Labor Relations Board v. Noel Canning reaffirmed this foundational lesson: When there is inter-branch disagreement that cannot be resolved through the political process, no nominee can be confirmed. Justice Scalia’s prescient concurring opinion in that case reminds us that senatorial refusal to confirm is not an unforeseen flaw but an intentionally designed feature of the Constitution. This is true even where it frustrates the orderly functioning of the federal government.
The case began in 2011 when Senate Republicans blocked a vote on President Obama’s nominees to the National Labor Relations Board. Without new appointees, the NLRB would lose its quorum and its ability to issue decisions. Faced with a political problem that called for a political solution, the president turned to an unconstitutional shortcut: Although the Senate had not gone on recess, Obama acted as if it had. During a 72-hour window between pro forma sessions on January 3 and January 6, 2012, the president deemed the Senate in recess and made three appointments to the NLRB.
The Supreme Court unanimously rejected the president’s legal defense of his action and found that the recess appointments were unconstitutional. But all nine justices went even further than that, specifically refuting the president’s argument that gridlock justified his breach of the separation of powers. During oral arguments, Solicitor General Donald H. Verrilli, the administration’s top lawyer, argued that the president’s decision to disregard the pro forma sessions was justified as a “safety valve” in response to “congressional intransigence.” If the president did not make the recess appointees, “the NLRB was going to go dark,” Verrilli said. “It was going to lose its quorum.”
All nine justices forcefully rejected the assertion that the Senate has any duty to confirm a nominee, even if the Senate’s refusal inhibits the efficient operation of the government. Justice Scalia cogently made the point in a separate, concurring opinion. Writing with an air of clairvoyance — that we will probably recognize for years to come — he explained that “convenience and efficiency” are not the “primary objectives” of our system of government. Rather, the sort of “Senatorial intransigence” that gave rise to this case “is not a bug” but “a calculated feature of the constitutional framework.”