There has been some speculation that the President’s willingness to make recess appointments, as he did last week, may have been prompted by the Chief Justice’s suggestion that such appointments could be used to fill seats on the National Labor Relations Board. Last Tuesday, in New Process Steel v. NLRB, the Court heard arguments questioning the validity of decisions made by the Board with only two of its five seats filled. Among other things, the Justice Department argued that the decisions made by the two-member Board should be upheld, as otherwise decisions in pending cases could not be made. At the end of the argument, Deputy Solicitor General was asked whether the Board could be reduced to a single member, prompting this exchange:
JUSTICE SCALIA: Do — do we have any notion when — when the board will reduce to one?
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.
JUSTICE GINSBURG: Three?
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.
The question about recess appointments was certainly timely, but I doubt it had much influence on the Administration’s decision to make its recess appointments. Perhaps it encouraged the Administration ton include two NLRB nominees, including one who has been particularly controversial, but I am skeptical. The Administration has been in office for over a year, so it is a logical time to begin considering the use of the recess appointment power to fill important positions. Looking at the list of appointments, several are to positions that are quite important, if not high profile. If anything, I am surprised the Obama Administration did not make its first recess appointments earlier. President Bush made his first recess appointments in January 2002.