Noel Canning v. NLRB

[Grizzly Adams]

As may have been discussed previously, President Obama decided in 2012 to appoint several people to positions in the National Labor Relations Board using his recess appointment power. He did this despite the fact the Senate was still technically in session, holding pro forma sessions every three days.

The NLRB, with the recess-appointed members, proceeded to make rulings on questions before them. One such ruling adversely affected Noel Canning, a contract bottling and canning company, which subsequently filed suit in federal court, alleging the unfavorable ruling was illegitimately issued because the board lacked a quorum because the recess appointments were unconstitutional. The case has made its way to the US Supreme Court (more information here).

The lower court decided in favor of Noel Canning (and not even just because the Senate was holding its pro forma sessions), ruling that where the recess appointment clause refers to "the recess of the Senate" it means only that recess which occurs between the first and second sessions of a Congress. It went even further and also ruled the vacancy being filled must have been created during that same recess. Oral arguments for the case took place at the Supreme Court on 13 January.

Probably not surprising to most here, I am solidly rooting for the court to rule in favor of Noel Canning. My reasoning will come out in later posts. What are your thoughts?

 

[Cool Hand Luke]

President Obama claimed the power in 2012 to appoint several people to positions in the National Labor Relations Board using his recess appointment power.

.
Well if you're interested in a reasoned, scholarly debate about it (and it's a very good subject to debate) then we need to start out by debunking the above quoted piece of ridiculous rhetoric so we can get down to the truly important stuff.

President Obama did not "claim the power" to make these kinds of appointments. It has, in fact, been the official position of the Justice Department since 1921 that the definition of a Senate recess for the purposes of the Appointments Clause was anytime that the Senate was unable "to receive communications from the President or participate as a body in making appointments". This language is actually embodied in a formal US Attorney General opinion from that same year.

The Justice Department later extended that AG Opinion to the pro forma sessions started in the Senate to block recess appointments. This was done under George W. Bush's presidency in 2004, not Obama's. In fact, the opinion was authored by Jack Goldman as Assistant Attorney General and approved by Alberto Gonzales as Counsel to the President - both of whom carry legal superstar status in eyes the Republican Party.

The only thing Obama did was to actually rely on what had been the law since 1921 and what had been official policy of a Republican administration since 2004. If anybody "claimed the power" to make appointments during pro forma sessions it was Bush. Obama was just the first President to act on Bush's claim. In the end, though, it was the Bush administration that formalized the claim to presidential appointment power during pro forma sessions and made it the official policy of the Executive Branch.

So while it's obvious you've got an ideological leaning on this one, you need to ditch this concept of Obama as the big, bad boogeyman on recess appointments. What he did has been the law since Warren Harding was in office and was fully endorsed by the Republican Party until Obama started using their own legal opinions against them. Trying to twist this into some kind of power grab by Obama is nonsense. It's just another political lie put out by his detractors to try and shame the man.

And with that issue safely put to rest, this is actually an extraordinary fascinating case that I would love to discuss if people can just leave their political attacks out of it. I'm actually on the fence about it. There are great arguments on either side.

My current thinking is that the Court may just chuck the whole thing out as a nonjusticiable political question and let the other two branches duke it out. That would be the least troublesome course for all parties involved in the current case but could risk gross expansion of presidential power down the road. It's a real tough one and a great case for those of us who thrive on this kind of stuff. There's really no telling where The Nine will end up with it.

 

[Grizzly Adams]

.
Well if you're interested in a reasoned, scholarly debate about it (and it's a very good subject to debate) then we need to start out by debunking the above quoted piece of ridiculous rhetoric so we can get down to the truly important stuff.

You are unequivocally, absolutely, 100% correct on this point. I began drafting the sentence, tweaked it a lot, but then left the first part unmodified by accident. I have altered the wording.

The only thing Obama did was to actually rely on what had been the law since 1921 and what had been official policy of a Republican administration since 2004. If anybody "claimed the power" to make appointments during pro forma sessions it was Bush. Obama was just the first President to act on Bush's claim. In the end, though, it was the Bush administration that formalized the claim to presidential appointment power during pro forma sessions and made it the official policy of the Executive Branch.

I would take issue with the assertion that someone in Bush's Cabinet drafted a memo saying Bush could do something means that it was Bush's claim, but it's really quite irrelevant. Bush didn't do it; Obama did. And here we are.

So while it's obvious you've got an ideological leaning on this one, you need to ditch this concept of Obama as the big, bad boogeyman on recess appointments. What he did has been the law since Warren Harding was in office and was fully endorsed by the Republican Party until Obama started using their own legal opinions against them. Trying to twist this into some kind of power grab by Obama is nonsense. It's just another political lie put out by his detractors to try and shame the man.

And with that issue safely put to rest, this is actually an extraordinary fascinating case that I would love to discuss if people can just leave their political attacks out of it. I'm actually on the fence about it. There are great arguments on either side.

I would say it IS a power grab because he actually did it. Regardless, I would like to believe I'd be on the same side of the debate if it were my guy in the Oval, but I couldn't promise it 100%.

My current thinking is that the Court may just chuck the whole thing out as a nonjusticiable political question and let the other two branches duke it out. That would be the least troublesome course for all parties involved in the current case but could risk gross expansion of presidential power down the road. It's a real tough one and a great case for those of us who thrive on this kind of stuff. There's really no telling where The Nine will end up with it.

I can't see a responsible Court declaring this a non-justiciable political question. There is a process for recess appointments, and it must be followed. It's clearly a constitutional issue.

 

[casebro]

To me the big point is that neither the 1921 nor 2004 memos from the AG office have ever been adjudicated.

 

[Spindrift]

To me the big point is that neither the 1921 nor 2004 memos from the AG office have ever been adjudicated.

How often are those AG memos adjudicated?

 

[Cool Hand Luke]

I can't see a responsible Court declaring this a non-justiciable political question. There is a process for recess appointments, and it must be followed. It's clearly a constitutional issue.

.
But what they're fighting over is the definition of "recess of the Senate" which isn't in the Constitution. The Constitution is completely silent over what a "recess" is. That leaves the window open for political question doctrine.

On top of that, it has always been understood that it's the Senate which decides for itself when to go on recess. That further encourages political question doctrine since the timing of the recess is completely under the control of a political branch.

Now, whether they SHOULD call it a political question is another matter. That approach is as fraught with danger as coming out with a strong ruling.

Roberts has traditionally shied away from big-ended rulings with sweeping repercussions. He likes to keep the court out of things. In this one he either has to side with the Senate, side with the President, or punt. Under those circumstances I think punting is definitely in his playbook.

Kagan might well be leaning toward political question doctrine too. During the oral argument she called the clause "a historical relic" and flat out said that it's "really the Senate’s job to determine" what a recess is. I don't know how you can believe in that statement and not call it a political question.

On the other hand, it was clear from the argument that most justices think there needs to be some limit on Presidential authority in this area. Invoking political question doctrine would, in the end, hand the whole apple to the White House so they may be reluctant to do it even if the case clearly calls for it. Ginsburg, Kennedy, and Alito clearly seemed uncomfortable with giving either the President or the Senate a full pass.

So who knows how it will play out. I personally think political question doctrine is appropriate here - and some of the amicus briefs filed in the case support that as well. It's clearly an option on the table if The Nine can't figure out a better way to deal with it.

One thing that's certain is the opinion from the DC Circuit can't be allowed to stand. Somebody must have slipped some goofballs into the judge's coffee on the morning they came up with that stinker of an opinion. I can't possibly imagine that we'll walk away from this with the lower court ruling intact.

 

[Grizzly Adams]

As I stated in the OP, I believe Noel Canning has the argument in this case, and the lower court got it right. Here's why:

The recess appointment clause states:

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 next Session.

First, the times during which the clause states it can be exercised is during "the" recess of the Senate. The reference to a singular recess is most reasonably read to mean the intersession recess (breaks during the summer lasting a month or two) and not any old recess such as winter holiday breaks, weekends, or lunch.

Second, the clause applies only to vacancies that "happen during" the recess. A study of the dictionary reveals the definition of the word "happen" and its synonyms would not refer to any vacancies that didn't arise during the recess.

 

[Grizzly Adams]

Oh, also, during that particular recess where Obama made those recess appointments the Senate passed, and the president signed, legislation. So there's that...

 

[Grizzly Adams]

.
But what they're fighting over is the definition of "recess of the Senate" which isn't in the Constitution. The Constitution is completely silent over what a "recess" is. That leaves the window open for political question doctrine.

On top of that, it has always been understood that it's the Senate which decides for itself when to go on recess. That further encourages political question doctrine since the timing of the recess is completely under the control of a political branch.

Now, whether they SHOULD call it a political question is another matter. That approach is as fraught with danger as coming out with a strong ruling.

They absolutely should NOT call it a political question. You've made a great case in this post as to why. Yes, the Constitution is silent on what a recess is. However, the recess appointment clause is not quite so silent on when the power maybe used, as I described above.

And it's precisely because the Senate which decides when it is in recess that this is a problem. The Senate decided it was in session, and really could not legally be out of session because the House wouldn't agree to adjourn. The Senate was in session but the president decided it wasn't (although only for confirmation votes, but not for votes passing legislation) and appointed people to positions for which the Senate must confirm them. If the court cannot decide if someone was improperly appointed, who does?

Kagan might well be leaning toward political question doctrine too. During the oral argument she called the clause "a historical relic" and flat out said that it's "really the Senate’s job to determine" what a recess is. I don't know how you can believe in that statement and not call it a political question.

It's easy. You call it a separation of powers question, because that's precisely what it is.

 

[Cool Hand Luke]

As I stated in the OP, I believe Noel Canning has the argument in this case, and the lower court got it right. Here's why:

The recess appointment clause states:

First, the times during which the clause states it can be exercised is during "the" recess of the Senate. The reference to a singular recess is most reasonably read to mean the intersession recess (breaks during the summer lasting a month or two) and not any old recess such as winter holiday breaks, weekends, or lunch.

Second, the clause applies only to vacancies that "happen during" the recess. A study of the dictionary reveals the definition of the word "happen" and its synonyms would not refer to any vacancies that didn't arise during the recess.

.
Yes, this will almost certainly be in Scalia's concurrence or dissent. I'm not sure the rest of the Court is buying it though - and not too many other people are either.

If you listen to or read the transcript of the oral argument several of the justices expressed skepticism about this approach. The meaning of the word "happen" was singled out with the strong suggestion that its meaning has changed significantly from the days of the Founders. I think the extraordinarily limited reading of the word "the" is an even bigger stretch.

More importantly, I think, is the fact that everybody has been interpreting those same words in a different way for the last 200+ years.

The question over the meaning of "the" and "happens" actually came up for the first time way back in 1792. The issue was whether the President could make a recess appointment for a Chief Coiner at the US Mint. The vacancy technically arose during a session of Congress when the position was first created, but went unfilled until the Senate adjourned. The Founders at that time were distinctly split on the answer. Some, like Hamilton and Randolph, agreed with your reading and thought the recess appointment couldn't be made. Others, like Adams, Washington, and Madison, took the exact opposite view. Still others, led by Jefferson, sat on the fence about it.

Since that first argument there have been several conflicting Attorney General opinions issues that brushed on the subject. Those don't help us much either as the official position of the AG flip-flopped back and forth over the years as well.

So the historical record is 100% unclear as to the original meaning of the phrase. There's no way anybody can pull out a dictionary today and say "that's what it means" because even the guys who wrote the damn thing couldn't agree on it. You can consult as many dictionaries as you want, it won't help solve anything.

What we DO know is that Presidents have been making intrasession recess appointments for vacancies arising during Senate sessions for nearly 100 years. Calvin Coolidge made the first one and every President since then has kept up the practice. George Bush appointed John Bolton in 2005 during the normal August recess for a vacancy that arose in January during the normal Senate session. It's not like there's anything at all unusual about it. It's been the accepted interpretation of the law for decades.

So what we have here is a group of Founders complete split on the meaning of the term plus 100 years of everybody agreeing on what it means and setting precedent on it through the actions of the President and Congress. In such cases precedent has to win. I know Scalia poo-poo'd that notion during the oral argument, but you can't just throw out 100 years of executive branch actions and court rulings. All of that would be subject to challenge if the Court adopts your reading. There will be chaos in the federal courts as people rush to challenge 20-year-old convictions and rulings. I can't see anyway that the Court will do that or that it's the correct ruling if they do.

History just isn't on your side of the argument here. There was never any agreement between the Founders on the meaning. The historically accepted practice has to be given extraordinary weight here.

 

[Hutch]

* Hutch reads thread *

* Hutch goes back to top to confirm this really is a thread in the USA Politics Forum *

* Hell freezes over *

I mean, a respectful, insightful and intelligent discussion of viewpoints between two posters in the political forums. Who woudla thunk it?

Breif interruption ended. Please continue on, gentlemen. Fascinating stuff.

 

[Cool Hand Luke]

They absolutely should NOT call it a political question. You've made a great case in this post as to why. Yes, the Constitution is silent on what a recess is. However, the recess appointment clause is not quite so silent on when the power maybe used, as I described above.

And it's precisely because the Senate which decides when it is in recess that this is a problem. The Senate decided it was in session, and really could not legally be out of session because the House wouldn't agree to adjourn. The Senate was in session but the president decided it wasn't (although only for confirmation votes, but not for votes passing legislation) and appointed people to positions for which the Senate must confirm them. If the court cannot decide if someone was improperly appointed, who does?

.
In such cases the PEOPLE decide. That's the whole point of the political question doctrine - that there are some things that the courts need to keep out of and let the voters decide for themselves. If they don't like Obama's appointments then vote for a Republican next time. Don't like the House blocking up the plumbing then toss the Republicans out. The doctrine is, in fact, a very right-wing/libertarian/get-the-government-off-my-back position. I'm actually a bit amused to see the Republicans arguing so forcefully against it simply because it happens to hurt them in this case.

If you look at the history of the doctrine this is EXACTLY the kind of case where it should be used. In Baker v. Carr (1962) the Supreme Court laid out the criteria for employing the doctrine as this:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Note that those are "or" factors - and here you've got pretty much every single one of them in play.

"Constitutional commitment of the issue to a coordinate political department"? Check. Article 1 gives the Senate plenary authority to set it's own rules.

"Lack of judicially discoverable and manageable standards for resolving it"? Check. As I noted above, the Founders were in complete disagreement over this question. You could study the history for another 100 years and never come up with a definitive reading of the clause. There's no way the Court can come up with a sound ruling on it.

"The impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion"? Check. The very fact that this issue has caused so much angst demonstrates that it has important public policy considerations that are beyond the scope of the courts.

"The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government"? Double Check on that one. Issuing a ruling means embarrassing either the President or the Congress. No way outta that.

And so on and so on with the rest of the factors.

This is a classic spot for political question doctrine to be used. They don't have to do it, but we've got fifty-year-old, oft-affirmed decisions from the very same court saying that this is exactly the kind of case they should keep their nose out of.

It's easy. You call it a separation of powers question, because that's precisely what it is.

.
Well, if it's a powers question then how do you justify the actions of the House?

The Constitution specifically limits the appointments power to the President and the Senate. In this case you've got the House openly and explicitly acting to interfere with those powers in a way that the Founders clearly never intended.

If you call this a Separation of Powers issue then score one for the President because the House is interfering with his explicitly enumerated appointments power by using an extraordinary Article I backdoor trick to obstruct him.

 

[theprestige]

It has, in fact, been the official position of the Justice Department since 1921 that the definition of a Senate recess for the purposes of the Appointments Clause was anytime that the Senate was unable "to receive communications from the President or participate as a body in making appointments". This language is actually embodied in a formal US Attorney General opinion from that same year.

[...]

The only thing Obama did was to actually rely on what had been the law since 1921...

Since when have Justice Department memos been law?

 

[BobTheCoward]

I was intrigued by the part where the justices discussed that given the state of technology, the Senate could reasonably declare itself never in recess.

If the function of the clause was to appoint people when the senate was unavailable (dont know if true, but lets assume), then appointing person X when the senate has explicitly said they would not approve person X seems to be like an abuse. Is that ever a factor in rulings?

What was the first instance where the president appointed someone in the recess because the senate dismissed the candidate while in session?

 

[Cool Hand Luke]

Since when have Justice Department memos been law?

.
Since the Judiciary Act of 1789.

AG and OLC opinions are considered to be binding on the Executive Branch and, as far as I know, always have been. The 1921 AG opinion was, therefore, effectively the law as far as the President is concerned since the day it was issued and every administration since that point regarded it as such.

Yes, you can argue that there's nothing in the Constitution or the common law about those opinions being binding, that the statutory powers of the AG in 28 USC are not clear on this point, and that the President, as Chief Executive, can overrule the opinions on his own anytime he wants. I would then counter that your argument is completely moot because every single President and Executive Branch official treats the opinions as though they are binding and will continue to do so no matter what argument anybody wants to make to the contrary. You can argue all day about it. The Executive Branch is still going to follow those opinions.

Justice Department memos are treated with similar, although lesser deference. While they're not considered binding they are afforded great respect and are overridden inside the Executive Branch only rarely and when circumstances absolutely demand it. How many tempests have blown up when a President or agency doesn't follow a Justice Department memo on something? It's not something that's taken lightly.

The courts, of course, are allowed to disagree with AG opinions and often do. That's exactly what's happened in this case. Until that happens and a court makes a ruling on the subject the AG opinion is law inside the Executive Branch.

 

[theprestige]

.
Since the Judiciary Act of 1789.

AG and OLC opinions are considered to be binding on the Executive Branch and, as far as I know, always have been. The 1921 AG opinion was, therefore, effectively the law as far as the President is concerned since the day it was issued and every administration since that point regarded it as such.

Yes, you can argue that there's nothing in the Constitution or the common law about those opinions being binding, that the statutory powers of the AG in 28 USC are not clear on this point, and that the President, as Chief Executive, can overrule the opinions on his own anytime he wants. I would then counter that your argument is completely moot because every single President and Executive Branch official treats the opinions as though they are binding and will continue to do so no matter what argument anybody wants to make to the contrary. You can argue all day about it. The Executive Branch is still going to follow those opinions.

Justice Department memos are treated with similar, although lesser deference. While they're not considered binding they are afforded great respect and are overridden inside the Executive Branch only rarely and when circumstances absolutely demand it. How many tempests have blown up when a President or agency doesn't follow a Justice Department memo on something? It's not something that's taken lightly.

The courts, of course, are allowed to disagree with AG opinions and often do. That's exactly what's happened in this case. Until that happens and a court makes a ruling on the subject the AG opinion is law inside the Executive Branch.

So... not actually law, then?

And certainly not binding on matters that extend beyond the boundaries of the Executive branch, right?

I mean, if the Legislature says they're in session, and the Executive shows up waving an AG memo that says they're not, it's binding on him, but is it binding on them?

 

[Cool Hand Luke]

What was the first instance where the president appointed someone in the recess because the senate dismissed the candidate while in session?

.
I don't know when the first time was - Teddy Roosevelt maybe? - but the recess appointment of John Bolton as UN Ambassador that I mentioned above fits that bill.

The Senate did not directly vote him down, but their was a filibuster against him that effectively killed his nomination. There were two cloture votes on the filibuster and the margin against him grew on the second vote with some Republicans openly calling for Bush to withdraw him and pick somebody else. It then came out that he had made inaccurate statements to the Senate in his written confirmation statements and the bottom really fell out of his bucket. There was no possible way he was ever going to be confirmed.

Bush held fast, though, and appointed him during the 30-day August Senate recess despite howls from pretty much every direction. IIRC Bolton then resigned just before the end of the next Senate session so that the Senate couldn't chuck him out on their own. Probably the highest level "You can't fire me, I quit!" other than Richard Nixon.

Note my mention of Teddy Roosevelt. In 1903 the Senate adjourned for a few hours. In that time he made more than 160 recess appointments. Although I have not gone to look them all up I think it's pretty certain that at least some of those folks were not high on the list of likely confirmees.

 

[Cool Hand Luke]

I mean, if the Legislature says they're in session, and the Executive shows up waving an AG memo that says they're not, it's binding on him, but is it binding on them?

.
Which is exactly why it's at the Supreme Court right now, yes?

And if you'd like the Senate's original opinion of when recess appointments can be made you can find it in the words of the Senate Judiciary Committee from 1905 that says the following:

It was evidently intended by the framers of the Constitution that [the word “recess”] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments. . . .

That's the language that the 1921 AG opinion was based on. The AG didn't just make it up. He adopted the Senate's own opinion of its own rules for the Executive Branch for follow.

So it's kinda difficult to imagine how anybody can argue about the historical understanding and practice here. The Senate has been saying that these pro forma sessions don't count for 110 years. The Executive has been saying they don't count for 90 years. How anybody can now make the argument that they suddenly DO count is beyond me.

You simply can't jump up, wave your hands around, and say that everything's going to be different now and nothing that came before counts. Harry Reid was wrong when he did it back in 2007 and the Republicans in the House are wrong for doing it now. If we applied that kind of behavior on a regular basis the government would REALLY be screwed up. This whole mess should never have come up in the first place.

 

[Cool Hand Luke]

So... not actually law, then?

.
And before I forget to address this . . . Yes, it is actually law.

There are many different types of law. "The law" is not limited to things in the Constitution or laws passed by Congress. Court opinions are "law". Executive agency regulations are "law". Treaties are "law".

Congress gave the AG power to issue opinions to the President, Executive Branch agencies, and the military back in 1789. That power is still preserved in the statutes today. The AG's opinions are "law" in that respect.

Just because Congress doesn't put it's stamp of approval on AG opinions doesn't make them moot. There's lots of law that Congress never directly gets involved in. It doesn't mean that this kind of law isn't binding on people.

Just try violating the Federal Tax Regulations - which are never directly passed by Congress and never signed by the President - and you'll quickly discover just how binding such law is.

 

[Grizzly Adams]

.
Yes, this will almost certainly be in Scalia's concurrence or dissent. I'm not sure the rest of the Court is buying it though - and not too many other people are either.

If you listen to or read the transcript of the oral argument several of the justices expressed skepticism about this approach. The meaning of the word "happen" was singled out with the strong suggestion that its meaning has changed significantly from the days of the Founders. I think the extraordinarily limited reading of the word "the" is an even bigger stretch.

I haven't read the complete transcript (I'm waiting for the audio recording to come up in my podcast shuffle) but I did flip through it to look for references to the "may happen" restriction. I saw the justices being pretty evenly hard on the arguers from both sides and wouldn't characterize the questioning as being skeptical in favor of one side or another (except Scalia, of course). Again, I haven't read the whole thing but that was my impression from the few pages I did read. (And I didn't even look for references to "the" recess.)

More importantly, I think, is the fact that everybody has been interpreting those same words in a different way for the last 200+ years.

Even if we accept that narrative, the fact remains that this situation is completely novel. The Senate was not (and legally could not have been) in recess, and they even passed laws which Obama signed during this same period. What presidents have been doing for 200+ years may be right or wrong, constitutionally speaking, but no president has done what Obama did.

.
In such cases the PEOPLE decide. That's the whole point of the political question doctrine - that there are some things that the courts need to keep out of and let the voters decide for themselves. If they don't like Obama's appointments then vote for a Republican next time. Don't like the House blocking up the plumbing then toss the Republicans out. The doctrine is, in fact, a very right-wing/libertarian/get-the-government-off-my-back position. I'm actually a bit amused to see the Republicans arguing so forcefully against it simply because it happens to hurt them in this case.

It's a ridiculous interpretation because it effectively nullifies the advice and consent clause - the president can appoint whomever, to whatever, whenever, and there is no remedy anyone can pursue except voting someone out of office? Possibly four years in the future? Advice and consent is there and it can't be nullified by invoking the "political question" doctrine. That doctrine is better reserved for a situation in which the Senate refuses to vote on a nominee or the House refuses to consent to an adjournment.

Note that those are "or" factors - and here you've got pretty much every single one of them in play.

"Constitutional commitment of the issue to a coordinate political department"? Check. Article 1 gives the Senate plenary authority to set it's own rules.

Yes, and the president has ignored the Senate's authority to do so.

"Lack of judicially discoverable and manageable standards for resolving it"? Check. As I noted above, the Founders were in complete disagreement over this question. You could study the history for another 100 years and never come up with a definitive reading of the clause. There's no way the Court can come up with a sound ruling on it.

On this case, yes there is because (as I said above) this has never been done before.

"The impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion"? Check. The very fact that this issue has caused so much angst demonstrates that it has important public policy considerations that are beyond the scope of the courts.

I'm going to be completely honest here - I'm not even sure I understand what they are saying with this one.

"The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government"? Double Check on that one. Issuing a ruling means embarrassing either the President or the Congress. No way outta that.

I don't read that as "embarrassment". The Executive and Legislative Branches may both be embarrassed if the court strikes down legislation as unconstitutional. If anyone has expressed a lack of respect for a coordinate branch of government it's the president who elected to ignore the fact that the Senate was in session and was even able to pass legislation. One branch's blatant disregard for another branch's due respect does not obligate the third branch to do nothing.

Well, if it's a powers question then how do you justify the actions of the House?

The Constitution specifically limits the appointments power to the President and the Senate. In this case you've got the House openly and explicitly acting to interfere with those powers in a way that the Founders clearly never intended.

If the situation is really as dire as it may appear, the president may exercise his power to adjourn the houses as they cannot agree to adjourn. He didn't.

If you call this a Separation of Powers issue then score one for the President because the House is interfering with his explicitly enumerated appointments power by using an extraordinary Article I backdoor trick to obstruct him.

But the decision to adjourn is delegated to each chamber of Congress by the Constitution. There is no provision for recess appointments in the case the House is being a pain.