Is Noel Canning v. NLRB a classic separation-of-powers conflict between the Senate and the President, or a false controversy created by the House of Representatives, which has no business interfering with appointments? I argue the latter in a short essay forthcoming in the Harvard Law Review's online companion, the Forum.
I have a few more thoughts on the controversy that I hope to share here in the coming weeks as well. Here's one: If you've followed the current recess appointments controversy, you know that challenges to Richard Cordray's appointment are moot since the Senate confirmed him in July and he ratified his prior actions. So the issue is moot now, but there's an unexplored argument that his appointment was always valid because the Senate consented to it.
In 1863, Congress enacted the Pay Act, which withholds pay from recess appointees who fill vacancies that predated the recesses during which they were appointed. The statute's purpose is easy to discern: Congress disliked that the President could use recess appointments to avoid seeking Senate confirmation, and it sought to deter him from doing so. Later, however, Congress modified its original stance and added some pragmatic exceptions. The statute currently authorizes compensation to recess appointees when the President lacks enough time to nominate someone before the relevant recess or the Senate ends its session while a nomination is still pending. In other words, if the President performs his role properly and the Senate does not, then a recess appointment is acceptable.
The Pay Act can be viewed as a standing order granting Senate consent to recess appointments that meet its terms. To be sure, authorizing pay is not the same thing as granting consent to an appointment. But the Senate didn't just authorize pay; it joined with the House in a deliberate decision to grant pay where it was once denied. And we can rule out the possibility that Congress modified the Pay Act out of a sense of obligation. If Congress believed that the Constitution required it to compensate executive officers, it would have repealed the Act altogether. Rather, the natural inference is that Congress, including the Senate, decided that appointments within the Pay Act's terms are legitimate. The President's appointment of Cordray fell squarely within them, as it was "pending before the Senate for its advice and consent" at "the end of the session" 5 U.S.C. § 5503(a)(2). One might argue that the Senate can't give statutory consent in this manner. But if the constitutionality of a recess appointment turns on the Senate's view of the conditions under which it was made — which is something I argue in the essay mentioned above — then it isn't immediately obvious why the Senate can't define the appropriate conditions by statute.
Note that this argument does not apply to the NLRB appointments at issue in Noel Canning. Those nominations weren't pending before the Senate when its session ended.