Jan 26, 2013

Posted in Uncategorized

Chief Justice Roberts Asks About The Recess Appointment Power and NLRB

Yesterday, I queried what the Supreme Court would think about the D.C. Circuit’s interpretation of the recess power. We may have a clue.

In New Process Steal v. NLRB, Chief Justice Roberts and Neal Katyal talked about the recess power. Roberts seemed to endorse the recess appointment power as a way to break the NLRB’s political holdups.

JUSTICE SCALIA: Do — do we have any notion when — when the board will reduce to one? (Laughter.)

JUSTICE SCALIA: When — when — when is one of the two’s term over?

MR. KATYAL: In the absence of any further confirmations or other appointments, one of the members, Member Schaumber, will leave on August 27th of this year.

JUSTICE SCALIA: Of this year. At which point there will be some pressure on Congress, I guess, right?

MR. KATYAL: There will. JUSTICE GINSBURG: There are — there are two nominees, are there not?

MR. KATYAL: There are three nominees pending right now.


MR. KATYAL: Yes. And they have been pending. They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed quorum — a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?

MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board. If there are no other questions -­

CHIEF JUSTICE ROBERTS: Thank you, counsel.

The Chief Justice would not seem to endorse the D.C. Circuit’s reasoning.

H/T Steve R.

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  • Steve Rappoport

    Roberts’ question was based on the then-unchallenged assumption that the recess power was available to Obama. That assumption was part of the political/legal landscape at that moment. He was not thinking about–indeed, had no reason to think about–the scope of the recess-appointment power. So what he said then has no bearing on how he will react once the issue of the scope of this power reaches his bench.

    • The Office of Legal Counsel has taken the position for many years that this recess power is constitutional. Roberts has spent extensive time in the Executive Branch, and was involved at the SG’s office from 1989-1983 with separation of powers cases that may have touched on this issue (e.g., Mistretta v. United States was 1989). I am sure he is familiar with these OLC memos Katyal referred to.