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Catching Up on My Blog Posts

Posted by Peter M. Shane on June 30, 2014

I’ve tried to be reliable in making sure that there appear on Shane Reactions all blog posts and essays I have contributed to other online venues, but I’ve fallen behind.  In the event anyone is looking for my collected online venting (between October, 2013 and June, 2014, that is), here’s the list of what I neglected to cross-post:

Two Cheers for Recess Appointments, RegBlog (June 26, 2014).

The Non-Constitutional Non-Crisis, Slate (June 5, 2014) — about the Bergdhahl-GITMO detainee trade.

“Privatization” is Not “Privacy,” Huffington Post, Apr. 11, 2014.

The True Spirit of Law School Reform, Chronicle of Higher Education, (Mar. 12, 2014).

The Myth of the Anti-Government Constitution, The Atlantic (Jan. 11, 2014).

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Boehner vs. Obama: A farce, with a point

Posted by Peter M. Shane on June 30, 2014

To the skeptical, Speaker John Boehner’s threatened lawsuit against the President for not faithfully executing the laws seems a cynical attempt to appease a GOP faction that thinks “governing while Obama” is an impeachable offense. We might see the suit more charitably as a misguided stab at attacking a serious issue.

The rest of the analysis appears here.

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The Constitutional Stakes in Debt Ceiling Brinkmanship

Posted by Peter M. Shane on October 14, 2013

If you don’t think the current government shutdown and fight over the debt ceiling are a threat to constitutional government, you’re not paying attention.

In my 2009 book, Madison’s Nightmare, I described a systematic “attack on checks and balances between 1981 and 2009 [that] can very much be seen as an assault on a constitutional culture built on checks and balances norms.” Iran-Contra, the government shutdowns of 1995, the Clinton impeachment, and the efflorescence of presidential power claims under Bush 43 all exemplified that attack.  Each episode was rooted in “the relentless campaign of the right wing of the Republican Party since 1981 to steer the capacities of our national government towards the fulfillment of a conservative social, economic and foreign policy agenda.”

The Republican minority in the Senate and the current GOP House majority are now intensifying that campaign.  Its results portend disaster for checks and balances.  Not only does the effort hurt the economy and undermine the quality of government service, but the GOP’s hostility towards interbranch accommodation positions the President so that he (or his successors) will be more likely to respond with initiatives that can only further corrode an institutional culture of self-restraint that is essential to constitutional government.

Consider, in this respect, the debt limit imbroglio.  Scholars and other commentators have advanced at least five options for a presidential response should Congress not raise the debt limit.

One is the trillion-dollar coin option.  The Treasury would use its facially unlimited statutory power to mint coins to create a platinum coin in a large enough denomination to avoid default and deposit it in the government’s account in the Fed.  The obvious problem with this option, which the Administration has already foresworn, is that the statute’s plain purpose is to authorize the minting of commemorative coins.  Congress could not plausibly have intended the Treasury to use its mint authority to augment the government’s borrowing capacity.  Just as bad, it might be seen as compromising the independence of the Fed, which is indispensable to its credibility.

A second is the Fourteenth Amendment option.  The President would declare the debt limit statute unconstitutional and thus inoperable at the point of default because in violation of the Fourteenth Amendment command: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”  The obvious problem here, as compelling as the historically based claim may be, is that, even if the President’s constitutional judgment is correct, it is not clear that the Fourteenth Amendment authorizes the President to create a remedy.  The White House has foresworn this option also.

A third option would be some form of prioritization.  The president could claim authority under the Impoundment Control Act to defer government spending other than paying off debt in such amounts as necessary to avoid further borrowing. He would presumably cite as his legal authority 2 U.S.C. sec. 684(b)(1), which authorizes deferrals to the end of the current fiscal year “to provide for contingencies.”  Of course, it would be odd to use the Impoundment Control Act to impose what would amount to the most ambitious presidential impoundment in history.  It would be turning the Impoundment Control Act on its head.

A fourth option would be a claim of some emergency authority inherent in the Constitution’s grant of “executive power.”  As suggested by Eric Posner: “[T]he president can declare an emergency and justify borrowing by citing reasons of state. . . .The president could invoke his ‘inherent’ executive powers under Article II of the Constitution (which vests the president with mostly undefined ‘executive’ powers).”  Unfortunately, there would be no obvious limit to the reach of such a precedent.  The argument that the Vesting Clause gives the President any robust set of unspecified domestic powers is dubious, to say the least, and Professor Posner’s suggestion could easily give root to a practice of presidential decrees utterly antithetical to a separation of powers.

Finally, the option I and others would favor – but which itself would also be audacious – is what I call the “faithful execution” option.  Professors Neil Buchanan and Michael Dorf have called this the “least unconstitutional” option, but I believe it would not be unconstitutional at all – just destabilizing.  Its premise is that Congress’s failure to raise the debt ceiling would leave the President with two irreconcilable demands – carry out Congress’s spending instructions as contained in current appropriations laws, but do not borrow money sufficient to carry out those instructions and repay debts already incurred.  It is as if he were told to drive simultaneously no faster than 45 miles per hour and no slower than 60.  The President cannot do both.

The solution under this option would be to interpret the appropriations laws as implicitly authorizing sufficient borrowing to allow the President to both carry out those laws and to repay U.S. debts on time, notwithstanding the debt limit statute.  Better he ignore one instruction than many, especially since ignoring many would involve making a host of budgetary prioritization decisions that are plainly matters for Congress, not the President.

Of course, were the President to pursue this option – or any of the others – it would likely remove any incentive for Congress ever again to legislate responsibly regarding a debt ceiling.  What one commentator has written about the trillion dollar coin option is only a slightly exaggerated assessment that applies to any unilateral presidential move to get Congress out of its hole:  “It would effectively mark the demise of the three-branch system of government, by allowing the executive branch to simply steamroller the rights and privileges of the legislative branch.”

A unilateral solution would also no doubt fuel calls for the President’s impeachment, which is currently a right-wing fantasy looking for a plausible legal hook.  For certain, the decline in our pre-1981 culture of interbranch accommodation would accelerate.

A British Prime Minister, Lord John Russell, famously observed: “Every political constitution in which different bodies share the supreme power is only enabled to exist by the forbearance of those among whom this power is distributed.”  Under the U.S. Constitution, the supreme power supposedly belongs to “the People,” but the absence of forbearance among those who exercise power in the People’s name threatens to render “the People” effectively powerless.  If Congress does not relent, believe me, things will get worse.

(This post appeared originally on the blog of the American Constitution Society.)

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Rebalancing War Powers: President Obama’s Momentous Decision

Posted by Peter M. Shane on September 1, 2013

President Obama’s pursuit of congressional authority for a Syrian strike operation is, to date, his single most important decision in reshaping the post-9/11 presidency.

He early foreswore torture and declared the U.S. bound by the Geneva Conventions in the war against al Qaeda. These orders, however, only institutionalized legal positions into which the Supreme Court had already pushed the Bush Administration. Guantanamo, despite Obama’s best efforts, is still open.

But seeking authorization for a military strike against Syria marks the first time that a modern-day president has taken the initiative to elicit legislative approval for a military action that, by the President’s own reckoning, will neither be a prolonged, nor a boots-on-the-ground operation.

In announcing his decision, President Obama, like both Presidents Bush, declared that he possessed the constitutional authority to act unilaterally. He said he does not need Congress’s approval in order to proceed.

But historical precedents have consequences. Whatever their formal legal views, the Bushes’ decisions helped cement a consistent pattern: With the exception of Korea, the United States has never engaged in a massive or prolonged military deployment without some form of explicit congressional sanction. A President acting unilaterally to start what is sometimes called “a real war” henceforth would probably be courting impeachment.

Since World War II, presidents (with the exception of Eisenhower) and their lawyers have consistently maintained that executive power encompasses unilateral presidential authority to deploy military force wherever the President thinks necessary to protect the national security of the United States. As well documented by Tulane law professor Stephen M. Griffin, however, presidents made no such ambitious claims prior to World War II. It was common for high public officials, including presidents, to say the contrary.

The modern argument generally takes either of two forms. One, elaborated by the State Department during the Vietnam War, is a kind of “living Constitution” argument. There is scholarly consensus that the Constitution intended for the President to have the authority, without advance congressional approval, to repel sudden invasions. The State Department argued that, under modern conditions, threats to U.S. national security anywhere in the world could be as urgent as the threat of an invasion would have been in 1789. Hence, the allocation of war-making authorities should now be understood to give the President unilateral war-making power that matches the scope of modern threats.

The second form of argument is that unilateral presidential power to conduct at least those military operations that fall short of “real war” has been ratified by Congress’s implicit acquiescence in presidential actions of just this sort. In other words, presidents have acted without Congress, and Congress has not barred the practice. The War Powers Resolution is sometimes argued as supporting this view because it effectively permits the President on his own initiative to commit armed forces to combat for up to 60 days.

Neither of these arguments is frivolous, but each departs notably from the original Constitution. Because the Constitution vests authority in Congress to issue “letters of marque and reprisal,” it is evident that the framers supposed congressional authority necessary to the deployment of military force even on a small scale.

A version of the history-based argument is, however, at least technically reconcilable with the original understanding. Congress’s acquiescence can be understood as a form of congressional authorization, which still remains a necessary legal precondition for any presidential military initiative.

The problem for Obama regarding Syria, however, is that – as scholars as different in political orientation as Jack Goldsmith and David Cole have pointed out -no historical precedent quite resembles the punitive strike that the President seeks to inflict. There is no imminent danger to U.S. persons or property. We are not acting at the behest of the sitting government. We would not be acting in pursuit of any resolution of the U.N. Security Council. It could not even be argued, as with Kosovo, that the strike was necessary to reaffirm the cohesiveness of NATO. Proceeding without either clear domestic precedent or obvious defense under international law would come close to saying that the President’s authority to deploy military force is beyond legal limit.

In seeking congressional authorization, President Obama is thus re-submitting the modern presidency to the kind of “cycle of accountability,” to use Professor Griffin’s phrase, that the constitutional design anticipated. We will strike Syria, if at all, based on a joint determination by both elected branches that should nurture an ongoing sense of joint responsibility to monitor and assess in a careful way whatever consequences ensue.

It is all the better for this purpose that support for a resolution, if enacted, will necessarily be bipartisan. No party and no elected institution will be able to say, in the face of adverse consequences, “We didn’t do this.”

It is also a strategy under which the President accepts political risk. If Congress votes down a resolution that would authorize a strike action, the President might take the position that (a) failure to pass a resolution of authority does not equal the affirmative passage of a resolution denying him authority, and (b) absent the latter, he still has constitutional power to undertake the mission unilaterally. But it’s not likely to be a politically viable argument. If Congress fails to authorize a Syria strike, the President is all but certain to desist – with obvious negative consequences for his credibility, both at home and abroad.

(It might be observed that no President who has gone to Congress for military authority has ever been turned down.  But none has sought military authority from a legislative branch as polarized as the current Congress.)

Of course, historical precedents are not legal precedents like Supreme Court opinions. The norm of consistency across cases is not as strong in decision making where politics dominates.

But events, when they happen, exert a force on the future. Should President Obama or his successors seek to attack other nations in similar circumstances in the future – Iran, for example, to forestall its nuclear ambitions – the question will be asked, “Why can’t Congress be involved, as it was in Syria?” This is an institutionally powerful question. It can limit the exertion of power. It will have force in rebalancing the allocation of authority between executive and legislative branches in the deployment of U.S. military assets in support of presidential foreign policy.

In the world of constitutional politics, this is a very big deal.

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In NLRB Recess Appointments Case, Roberts Court Can Now Show It Knows How to Exercise Judicial Restraint

Posted by Peter M. Shane on July 30, 2013

Bloomberg BNA yesterday published a brief essay of mine — a link to the full text appears below — arguing that, if the Senate confirms a full complement of members for the National Labor Relations Board, the Obama administration should ask the Supreme Court in Noel Canning v. NLRB to remand the case, without decision, to be re-heard by the NLRB. The Court should grant the request, showing a judicial restraint for which the Roberts Court is not known—and returning the recess appointments controversy to the elected branches of government, where it belongs.  If the SG does not pursue this course, the Court should use the political question doctrine to avoid unnecessary judicial interference with the dynamics of the President’s and Senate’s shared appointments power.

Peter Shane Argument for Judicial Restraint in Recess Appointments Cases

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How Full Is That Glass? Reflecting on Voting Rights, Employment Discriminiation and Gay Marriage

Posted by Peter M. Shane on June 27, 2013

Justice Kennedy’s opinion in United States v. Windsor immediately and deservedly now enters the canon of momentous Supreme Court human rights decisions. Historians and others will likely debate whether the Court’s disposal of the Prop 8 case on technical standing grounds — allowing same-sex marriage to proceed in California, but imposing no constitutional constraint on other states — was or was not the optimal outcome. The more optimistic view, of course, is that the Court’s restraint preserves the momentum of the gay rights movement without triggering the kind of political backlash that might have been engendered by a 5-4 decision holding prohibitions of same-sex marriage unconstitutional.

The political force of the Windsor and Perry cases, however, will be diminished by the Court’s evisceration of the Voting Rights Act in Shelby County v. Holder. A five-Justice majority held, in effect, that Congress could not constitutionally maintain a scheme designed to prevent and remedy racially discriminatory voting practices in the South because that scheme has apparently been successful in preventing and remedying at least some racially discriminatory voting practices. That conclusion, devastatingly refuted in Justice Ginsburg’s blistering dissent, is — to use her word — a stunning act of judicial “hubris.” The Fourteenth and Fifteenth Amendments explicitly give primary authority to Congress, not the Court, to determine the appropriate enforcement of their majestic guarantees. The Court’s determination that Congress just didn’t think hard enough about voting rights in 2006 to justify its latest extension of the Voting Rights Act is preposterous.

Shelby County also puts into context Justice Scalia’s vituperative DOMA dissent. He decries the Court’s “exalted conception” of its role in American life. He “promises” his readers that “T[he only thing that will 'confine' the Court's holding [on DOMA vis-a-vis the larger question of same sex-marriage] is its sense of what it can get away with.” “It takes real cheek,” Scalia writes, “for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here–when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.”

What makes this bluster so repugnant is that its author had no problem overturning a congressional act intended to preserve individual rights — the Voting Rights Act — that has been repeatedly and vigorously debated, was supported by successive bipartisan majorities in the national legislature, and which deprives not a single human being of life, liberty, or property. His fulmination, on the contrary, is on behalf of a statute that effectively did deprive married members of a political minority — men and women lawfully married under the laws of their respective states — of federal benefits potentially critical to their health and welfare.

It is also repugnant because Shelby County, in its determined obliviousness to America’s racial history, is of a piece with another Roberts decision Scalia supported – Parents Involved in Community Schools v. Seattle School District No. 1. In that 2007 case, a 5-4 Court held unconstitutional two school districts’ voluntary efforts to accomplish actual racial integration based on a reading of Brown v. Board of Education that was positively Orwellian. In Chief Justice Roberts’s world, the nastiness of racism is a thing of the past, apparently to be remedied on that rare occasion it may raise its ugly head only through case-by-case litigation, in which the laws of inertia clearly favor defendants, not targets of discrimination.

But it is important to see the DOMA and VRA cases, along with the week’s other civil rights decisions, in the same frame for yet another reason. The Court’s voting rights decision has now made it much harder for Democratic voters in the Deep South to achieve more progressive political representation.

Consider that the Supreme Court has now effectively left the definition of marriage for the determination of individual state legislatures. Likewise, in two employment discrimination cases this week, the Court has left it to Congress, our national legislature, to undo the Court’s ridiculously narrow understandings, respectively, of who qualifies as an employee’s supervisor and when retaliatory action against a sexual harassment claimant ought be actionable.

But, if Republican-controlled state governments in the South now wish to change their electoral systems to entrench their control of state government or to preserve a disproportionate share of their respective state delegations in Congress, it will be much easier to do so. As a formal matter, they will still be legally forbidden to adopt practices with the intent or effect of discriminating by race. Yet that legal guarantee will no longer be enforced through an efficient administrative process by the Justice Department. Individual voters, at their own expense and shouldering the burden of proof in litigation, will typically have to take the initiative (and the years of effort necessary) to challenge those practices. It won’t be pretty. Inertia again favors the bad guys, which is exactly what the Voting Rights Act sought to prevent.

In the Windsor and Perry cases, the Court has given Americans much to cheer. The Court has also left much, however, to a political process that the Court has befouled by taking the side of state rights against actual democracy.

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The Future of Recess Appointments in Light of Noel Canning v. NLRB

Posted by Peter M. Shane on May 28, 2013

A Jan. 23, 2013, panel decision of the U.S. Court of Appeals for the District of Columbia Circuit casts doubt on more than the future of two current federal agencies. It calls into question the legality of innumerable actions by hundreds of federal officials counting back to the days of the Reagan Administration.1

In Noel Canning v. NLRB,2 the court invalidated Obama’s January 2012 invocation of his recess appointments power to name three members to the National Labor Relations Board (NLRB). The panel unanimously concluded that the recess appointments power was available to presidents only between sessions of Congress. Yet well over 300 federal officials since 1981 have received such appointments during congressional sessions.

Two of the three judges went further. They interpreted the recess appointments power as applying only to offices that first become vacant between sessions of Congress. That holding would likely invalidate most of the more than 300 additional recess appointments that presidents since Reagan have made between congressional sessions.

THE PRO FORMA SESSION GAMBIT

The Noel Canning decision arose in the context of an ongoing struggle between presidents and Congress over the use of the recess appointments power. The Constitution conveys that power in a paragraph that authorizes the President “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.”3

When the Democrats regained control of the Senate in 2007, they began a practice of conducting so-called “pro forma sessions” during those recesses that occur within sessions of Congress. These pro forma sessions typically last only a couple of minutes, if that, during which the only business conducted—often by a single senator—is simply a call to order and adjournment until the next pro forma session. Senate Majority Leader Harry Reid (D-Nev.)—now a supporter of the contested Obama appointments—originally took the position that such pro forma sessions converted otherwise lengthy recesses into shorter adjournments, each of which would be too brief to trigger the president’s recess appointments power.4 Although apparently advised by the Justice Department that his recess appointments power remained intact,5 President George W. Bush declined to challenge the Reid strategy.

Between Dec. 17, 2011 and Jan. 23, 2012, the Senate again met only during ten pro forma sessions—but this time, not at the Democrats’ behest. Article I, Section 5 of the Constitution provides that “[n]either House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days … .” The evident purpose of this clause is to enable each House to keep the other in town in order to assure that business between them may be conducted. House Republicans, however—who were by no means staying in town to conduct business of their own—used this clause to deny the Senate permission to adjourn for more than three days between the end of the first and the start of the second session of the 112th Congress. The intent, once again, was to block presidential recess appointments.

CRISES AT THE NLRB AND CFPB

Against this procedural background, Obama faced a late 2011 administrative crisis involving two federal agencies. Obama had nominated labor attorney Craig Becker to the NLRB on July 9, 2009. When Senate Republicans filibustered Becker’s confirmation vote, Obama gave him a recess appointment to the Board over eight months later, on March 28, 2010. He resubmitted the nomination on Jan. 26, 2011, but the Republicans persisted in their filibuster. Republicans also prevented a vote on a second January, 2011 nominee, Terrence F. Flynn.

As a result of these filibusters, the NLRB was facing a calamity brought on by the Supreme Court’s 2010 decision in a case called New Process Steel v. NLRB.6 The Court there interpreted the National Labor Relations Act to require three lawfully participating members to be in place in order for the NLRB to act. The expiration of the 2010 Becker recess appointment threatened to reduce the Board’s membership to two. Thus, on Dec. 14, 2011, Obama withdrew the Becker nomination and forwarded to the Senate nominations for Sharon Block and Richard F. Griffin Jr. When the Senate predictably did not act on these nominations by the end of the first session of the 112th Congress, Obama set the stage for Noel Canning v. NLRB by giving recess appointments to Block and Griffin—and to Terrence F. Flynn—on Jan. 4, 2012.

Although the Noel Canning decision technically dealt only with these three NLRB appointments, Obama also made a fourth recess appointment on Jan. 4, 2012. He appointed Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) created by the Dodd-Frank Act. The Senate had sat on the Cordray nomination since July 18, 2011, because of Republican hopes to force an amendment to the Act that would convert the CFPB into a multi-member commission. Because the Dodd-Frank Act conditions certain of the agency’s powers on the appointment of the agency head,7 a vacancy in the director’s position would disable the CFPB from carrying out a number of its significant supervisory, enforcement, and rulemaking powers.

THE COURT’S REASONING IN NOEL CANNING

Noel Canning, a Pepsi-Cola bottling firm in Yakima, Washington, sued in the D.C. Circuit to overturn an NLRB order finding that management had unlawfully refused to enter into a collective bargaining agreement with the Teamsters local representing its production employees. A panel comprising Judges David Sentelle, Karen Henderson, and Thomas Griffith— appointees of Presidents Reagan, Bush 41 and Bush 43, respectively—concluded that the NLRB’s decision was legally supportable, but that it could not be enforced. The panel held that the Obama recess appointments were invalid and that, without them, the NLRB lacked the necessary quorum to conduct business.

Judge Sentelle’s opinion for the court reached its conclusion based on what it took to be the original “public meaning” of the Recess Appointments Clause. The panel determined that the phrase “the recess” in that clause would have been understood in the late 18th century to refer only to the period of adjournment between two sessions of Congress. Because the second session of the 112th Congress convened on Jan. 3, 2012, the court reasoned that appointments made on Jan. 4 were impermissible “intrasession” appointments.

Judge Sentelle went on to argue further, with only Judge Henderson in concurrence, that the original meaning of “happen” in the Recess Appointments Clause was “to occur.” For that reason, he wrote, the Recess Appointments Clause, properly read, would allow presidents to fill only those vacancies that first arise during recesses between sessions of Congress. Under this reasoning, the president could not legally fill a vacancy created by an official’s death even a day prior to the Senate’s adjournment, no matter how long the Senate remained in recess.

The court insisted that its strict reading of the Recess Appointments Clause was necessary to preserve the Senate’s critical confirmation role in the process of appointing officers of the United States, and to create a bright-line rule susceptible to objective judicial enforcement.

AN AUDACIOUS OPINION

For lawyers, two things are immediately noteworthy about the Noel Canning opinion. The first is that the court struck down the Obama appointees on the broadest constitutional ground imaginable. The panel could have decided the case against the NLRB by concluding that, whether or not the Recess Appointments Clause permits intrasession appointments, adjournments of three days are too short to count as a “recess,” and that the 2012 pro forma sessions effectively divided what would have been a 20-day recess into a series of mere three-day breaks. That analysis is debatable, but it would have had the obvious virtue of avoiding the unnecessary decision of larger constitutional issues. The Supreme Court has repeatedly described judicial modesty as the appropriate stance to take in conducting judicial review.

Second, the D.C. panel reached its conclusions despite significant contrary custom and authority. Presidents since the 1820s have consistently taken the position that vacancies “happen” during a recess of the Senate if they “happen to exist” during that recess. Congress itself effectively ratified that position in enacting the so-called Pay Act,8 which allows recess appointees to receive their salaries even if they were appointed to vacancies that occurred when the Senate was in session. The narrow reading of “happen” on which Noel Canning relies has been rejected by earlier opinions of the Second,9 Ninth,10 and Eleventh11 Circuits.

The permissibility of intrasession appointments is arguably a closer question. But presidents have consistently asserted authority to make intrasession appointments since 1921. As noted earlier, intrasession recess appointments have been as common since the first Reagan administration as intersession appointments. The Eleventh Circuit upheld their legality in Evans v. Stephens.12

In making his January, 2012 appointments, Obama acted under Justice Department advice memorialized in a Jan. 6, 2012, Office of Legal Counsel memorandum that relied, in turn, on earlier institutional precedents. In an official 1921 opinion for President Harding, Attorney General Harry M. Daugherty adopted a functional view of “recess,” derived from a 1905 Senate committee report; the 2012 OLC memo follows the same approach. The Senate committee asserted: “The word ‘recess’ is one of ordinary, not technical signification, and it is evidently used in the constitutional provision in its common and popular sense.”13 The report went on describe the Senate as being in recess when “its members have 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.”14

OLC observed in its 2012 opinion that the Senate’s 2011 and 2012 pro forma sessions were conducted pursuant to a unanimous consent resolution that had provided there would be “no business conducted” during those sessions.15 As viewed, therefore, by Obama, the pro forma sessions left unchanged the reality that the Senate was unavailable from Jan. 3 to Jan. 23, 2012 to act on nominations. The pro forma sessions left the “recess” intact.

WEIGHING THE ARGUMENTS

The strongest arguments against the Obama appointments support not the broad D.C. Circuit ruling, but the narrower analysis it eschewed. Opponents could argue that, notwithstanding the resolution promising “no business conducted,” the pro forma sessions did, in fact, keep the Senate available to consider nominations had the Senate chosen to do so. As pointed out by former OLC head Charles J. Cooper in testimony to the House Education and the Workforce Committee,16 the Senate did, at one of its pro forma 2011 sessions, pass by unanimous consent a two-month extension of a payroll tax cut, as requested by Obama.17 Should this argument prevail, the President’s Jan. 4 appointments would have been constitutional only if the three day Jan. 3-6 break counted as a “recess” adequate to trigger his recess appointments powers. No court has held a three-day break to be sufficient for this purpose, and executive branch pronouncements on the issue have not been consistent.18

The strongest argument in support of the president’s position rests on the proposition that the Constitution intends that the President to take the leading role in staffing the executive branch. Urging New Yorkers to ratify the Constitution, Alexander Hamilton explained the design of the appointments process in these terms: “[O]ne man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.”19 The Senate was given a role in the appointments process not to impede the President’s policy agenda, but as a check on potential corruption: “[The Senate] would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”20 Protecting the Senate’s confirmation role at the expense of the President’s appointments responsibility turns the constitutional design on its head.

If the President’s position is rejected, then presidents—who are constitutionally charged to “take Care that the Laws be faithfully executed”21—could be stymied permanently in the execution of their administrative responsibilities by a Senate minority determined to block appointments. Executive administration could even be blocked by a House of Representatives intent, as was the 2011 House, on disabling a Senate majority from adjourning. Because there is no plausible argument to be made that the House is intended to have a role in the appointments process, this perverse result is a powerful argument that “recesses” do not change their constitutional character because of pro forma sessions or, alternatively, that three-day breaks count as constitutional “recesses.” Three-day breaks are the longest periods of adjournment that the Senate may take without regard to the wishes of the House.

The textual arguments that the D.C. Circuit mustered for the narrowest possible reading of the President’s appointments power are weak. There is significant evidence that the Founding Generation understood a legislative “recess” to be a break that could occur either within or between legislative sessions. There is likewise evidence that 18th century readers would have understood the word “happen” to mean “happen to exist.” A straightforward textual reading of the President’s power “to fill up all vacancies that may happen during the recess of the Senate” would validate his authority “to fill up, during a period of adjournment either within or between sessions of the Senate, all vacancies that may happen to exist during that period of adjournment.” This is plainly the most practical reading of the Recess Appointments Clause, and the D.C. Circuit opinion rejecting it has the feel of semantic cherry-picking.

IMPACT ON THE AGENCIES

Standing on its own, Noel Canning is of limited practical significance. It affects only one NLRB order and is binding precedent only in the D.C. Circuit. The NLRB has continued to hear and decide cases notwithstanding its D.C. Circuit loss.

As well summarized, however, in an April, 2013 Congressional Research Service report,22 the potential impacts of the decision go much further. In the year between the disputed recess appointments and the D.C. Circuit’s opinion, the NLRB ruled on over 200 cases, any of which could be challenged in litigation on recess appointments grounds. Over 60 published decisions have been rendered by the Board since Noel Canning, along with a yet larger number of unpublished orders. Any party aggrieved by an NLRB decision has the discretion to appeal that decision to the U.S. Court of Appeals for the District of Columbia Circuit, which now obviously poses a problem for the enforcement of future NLRB orders.

Aggrieved parties might also use Noel Canning to challenge actions undertaken by the Consumer Finance Protection Bureau. The Dodd-Frank Act transferred to the CFPB a variety of supervision, enforcement and rulemaking powers previously delegated to other agencies, which the Act also permitted the Secretary of the Treasury to implement prior to the “confirmation” of a CFPB Director. A significant number of additional authorities, however, were vested exclusively in the Director, once duly in office.

Based on Noel Canning, all the rulemaking and enforcement actions undertaken by Director Richard Cordray are susceptible to a recess appointments challenge. Should the director’s appointment be invalidated, however, his exercise of any powers merely transferred to the CFPB from other agencies could be subsequently ratified by action of the Secretary of the Treasury, to whom those powers would revert.

The reasoning of Noel Canning calls into question not only the rules and order of the NLRB and CFPB, but all official actions of recess appointees who received either intrasession appointments or who were appointed to fill vacancies that first occurred when the Senate was in session. Yet even courts inclined to adopt the reasoning of Noel Canning might leave pre-Noel Canning actions intact under the so-called “de facto officer” doctrine. That doctrine “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.”23 It guards against “the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.”24

ANTICIPATING THE SUPREME COURT

The government has asked the Supreme Court to hear Noel Canning, and it would be surprising for the Court not to do so. The importance of the issues, the conflict in the circuits, and the expansiveness of the D.C. Circuit rationale all augur for Supreme Court review.

Predicting the outcome, however, is all but impossible. The Court is unlikely to adopt the D.C. Circuit’s reasoning because it goes so far beyond what is necessary to decide the case. That leaves, however, at least three options for the Court: It could uphold the Obama appointments because a three-day break is a recess or because the pro forma sessions left the relevant 20-day recess intact. It could uphold the Obama appointments because intrasession recess appointments to fill vacancies that arose at any time are constitutionally permissible, and the length of adjournment necessary to constitute a “recess” is best regarded as a political question to be fought out between the executive and legislative branches. Or, the Court could overturn the appointments following the more modest rationale that three days are too short to count as a “recess,” and the Jan. 3-23 “recess” was no more than a series of three-day breaks.

For Justices Scalia and Thomas, the D.C. Circuit’s textualist methodology will be attractive, but its execution by the lower court was clumsy. These Justices will also be aware that the D.C. Circuit’s reasoning could seriously weaken the presidency as an institution, and each is a reliable defender of executive power in almost all constitutional contexts. The same is likely true of Chief Justice Roberts and Justices Alito and Kennedy. They will not be oblivious to the institutional implications of deciding the case against the NLRB.

On the other hand, the current Justice best known for a pragmatic style of constitutional interpretation—Justice Breyer—is also an institutional veteran of the Senate, having served as both a Special Counsel and later as Chief Counsel to the Senate Judiciary Committee. He will not be dismissive of the Senate’s role in the confirmation process.

In short, the recess appointments issue—occurring at the confluence of concerns over executive power, constitutional interpretation, and party politics—resists easy categorization. The Noel Canning reasoning is unlikely to survive. Beyond that, we can only guess.

THE FUTURE OF RECESS APPOINTMENTS – AND OF CONGRESS

What many observers have characterized as a breakdown in the process of nomination and confirmation highlights a critical feature of constitutional government: The effective operation of the separation of powers system depends as much on informal norms or customs as it does on the constitutional text. Until recent years, presidents and Senates have generally behaved as though recess appointments should be rare, and nominees—especially to noncontroversial positions—should receive relatively prompt Senate up-or-down votes. Constitutional text, however, guarantees neither proposition, and recent behavior threatens to eviscerate these understandings.

A September, 2012 Congressional Research Service report documented the breakdown in norms by examining delays in Senate floor votes on noncontroversial presidential nominees to lower court judgeships.26 The report focused on nominees whom the Senate Judiciary Committee approved either by voice vote or unanimous roll call, and whose nominations were eventually approved by the full Senate with five or fewer dissenters. The report found: “For uncontroversial circuit court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 64.5 and 44.0 days, respectively, during the Reagan presidency to a high of 227.3 and 218.0 days, respectively, during the Obama presidency…For uncontroversial district court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 69.9 and 41.0 days, respectively, during the Reagan presidency to a high of 204.8 and 208.0 days, respectively, during the Obama presidency.”27 In other words, as compared to the Reagan years, the Senate is taking somewhere between three and five times longer, on average, to confirm judicial nominees about whom there is virtually no disagreement.

If the Obama appointments are upheld and if the pattern of Senate obstruction persists, one can reasonably predict far more recess appointments in the future. Of course, presidents will always have significant disincentives to use recess appointments. Such appointments can antagonize senators whose support is necessary for other business. They reduce stability in administration. When used for judges, recess appointments create the dangerous situation that cases supposed to be decided by appointees with life tenure are instead decided by judges who are effectively on probation and too easily worried about alienating the Senate that has to vote on them.

But recess appointments are a president’s primary tool for pushing back against Senate intransigence. If Senate filibusters persist, and should minority Senators block nominations in hopes of stalling agencies out of business, presidents will have no real alternative to ratcheting up the recess appointment device.

If Noel Canning is upheld, then the future depends on the grounds for decision. Should the Supreme Court agree with the D.C. Circuit that recess appointments are permissible only during intersession recesses and only for positions that first become vacant during those recesses, recess appointments will likely disappear—or presidents may engage in their own “creative” tactics, insisting on resignations during intersession recesses so that the resulting vacancies can be immediately filled.

On the other hand, if the Obama appointments are nullified only because three-day adjournments are not “recesses,” and pro forma sessions effectively break recesses into three-day breaks, then much will depend on the response of future Senates. Recess appointments will continue when the party that occupies the White House controls both the Senate and House. The Senate will not worry about recess appointments by a president of the majority party, and the House will not disable the Senate from recessing for lengthy periods.

If, however, either the House or the Senate is controlled by a party different from the president’s, then the pro forma session appointments block is likely to be institutionalized. If the opposing party controls the Senate, the Senate will adopt pro forma sessions on its own initiative. If the opposing party controls only the House, the House will use its Article I power to prevent the Senate from adjourning for more than three days.

This last scenario—the scenario that actually played out in 2011 and 2012—raises yet another dramatic possibility for the breakdown of constitutional norms. The Senate could take the position that it need not comply with the House’s Article I objections to adjournment unless the House itself remains in session—which the House may well resist doing. In other words, a Senate controlled by the president’s party could ignore the House’s lack of consent to adjourn if it regards the objection as illegitimate. The Senate could simply adjourn sine die at will. The House would have no legal remedy against the Senate, and the decline in institutional comity that seems to have overtaken the federal government since 1981 will accelerate.

(© 2013 Bloomberg Finance L.P. Originally published by Bloomberg Finance L.P. Reprinted with permission. The opinions expressed are those of the author.)

[1]  Henry Hogue, et al., The Noel Canning Decision and Recess Appointments Made from 1981-2013, at 4 (CRS Feb. 4, 2013) (tabulating presidential recess appointments since 1981).

[2]   705 F.3d 490 (D.C. Cir. 2013).

[3]   U.S. Const., Art. II, § 2, ¶ 3.

[4]   Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions (O.L.C. Jan. 6, 2012) [hereafter, OLC Recess Appointments Opinion], citing 154 Cong. Rec. S7558 (daily ed. July 28, 2008) (statement of Sen. Reid), and 153 Cong. Rec. S14609 (daily ed. Nov. 16, 2007) (statement of Sen. Reid) (“[T]he Senate will be coming in for pro forma sessions . . . to prevent recess appointments.”).

[5] Id., at 4, citing Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009).

[6]  130 S. Ct. 2635 (2010).

[7]   12 U.S.C. § 5586(a).

[8]   5 USC § 5503.

[9]   United States v. Allocco, 305 F.2d 704 (2nd Cir. 1962).

[10]   United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985).

[11]   Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).

[12]   Id.

[13]  S. Rept. No. 4839, 58th Cong., 3rd Sess. 3823-3824 (1905), quoted in Precedents of the House of Representatives, § 6687, at 852-853.

[14]   Id.

[15]   157 Cong. Rec. S8783 (Dec. 17, 2011).

[16]   Statement of Charles J. Cooper Before the House Committee on Education and the Workforce Concerning “The NLRB Recess Appointments: Implications for America’s Workers and Employers,” 2 (Feb. 7, 2012), available at http://edworkforce.house.gov/uploadedfiles/02.07.12_cooper.pdf.

[17]   157 Cong. Rec. S8789 (Dec. 23, 2011).

[18]   OLC Recess Appointments Opinion, supra note 4, at 9 n. 17.

[19]   The Federalist, No. 76 (Hamilton).

[20]   Id.

[21]   U.S. Const., Art. II, § 3.

[22]   David H. Carpenter and Todd Garvey, Practical Implications of Noel Canning on the NLRB and CFPB (CRS Apr. 1, 2013).

[23]   Ryder v. United States, 515 U.S. 177, 180 (1995).

[24]   Id. at 180-81.

[25]   Carpenter and Garvey, supra note 22, at 10.

[26]   Barry J. McMillion, Length of Time from Nomination to Confirmation for “Uncontroversial” U.S. Circuit and District Court Nominees: Detailed Analysis, at 2 (CRS Sept. 18, 2012).

[27]   Id.

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The NLRB, the IRS, and the Cancer of Senate Obstructionism

Posted by Peter M. Shane on May 28, 2013

[First published on Huffington Post on May 17, 2013]

Much of my writing on the constitutional separation of powers and checks and balances in operation is directed at the central importance of informal norms to effective government. Chief Justice Hughes famously wrote that “[b]ehind the words of the constitutional provisions are postulates which limit and control.” A subtle, but intimately related point is that our constitutional plan cannot work unless the competing institutions (and those in charge of them) agree on some common overarching values and on certain general understandings as to shared aims and the limits of unilateral power.

If you think the text of the Constitution provides sufficient guidance by itself to keep the government operating, do a few thought experiments. Imagine that the Senate and House had adopted a custom early on that each would unanimously reapprove any legislation returned to Congress with a presidential veto. Nothing in the Constitution forbids such a practice.

Imagine that Congress had read the Constitution to allow the House to impeach presidents for acts of lesser magnitude than “high Crimes or Misdemeanors,” providing that conviction carried some punishment short of removal. Don’t believe the constitutional text permits this? Read it.

These things did not happen, I presume, because Congress recognized that such “customs” would eviscerate the contemplated co-equality of the executive and legislative branches. But not a word of constitutional text would have cast doubt on these practices.

What we are witnessing today in depressing, even contemptible form is a GOP-led congressional subversion of two of the most elementary norms on which our government rests. The first is the proposition that the government should actually function. Agencies Congress has created and to which it has delegated administrative responsibilities should discharge those responsibilities efficiently and effectively. The second is that the president is primarily responsible for achieving effective administration and, toward that end, he is entitled to significant, if not controlling deference by the Senate in his choice of individuals to head government agencies.

A recent, almost bizarre bit of evidence of the GOP’s obliviousness to governance norms is the suggestion by Sen. Lamar Alexander (R-Tenn.) that NLRB recess appointees Sharon Block and Richard Griffin to resign from the Board because a D.C. Circuit panel held their recess appointments unconstitutional. Sen. Alexander is a smart man and a prominent lawyer. He knows full well that a constitutional pronouncement by one panel of the D.C. Circuit is hardly the final word in our judicial system. (As far as I know, Sen. Alexander did not urge opponents of the Affordable Care Act to abandon their challenges after a panel of the D.C. Circuit held the law constitutional. I don’t think he has urged the House to abandon its defense of the Defense of Marriage Act because a panel of the Second Circuitinvalidated it.)

The D.C. Circuit opinion in Noel Canning v. NLRB is precedent only for a single circuit. It conflicts with contrary holdings of the Second Ninth, and Eleventh Circuits. Its reasoning is debatable, to put the matter gently. The Supreme Court will undoubtedly resolve the matter eventually.

But, as absurd as is Sen. Alexander’s pretended unawareness of how judicial review operates is his utter disregard for the efficient transaction of business at the NLRB. As Suffolk University law professor Renee M. Landers pointed out last month to an American Bar Association program, the NLRB, during the year between the Griffin and Block appointments and the Noel Canning decision, rendered over 200 published opinions and over 500 unpublished orders. Resignations by Members Block and Griffin would presumably delay the resolution of hundreds of additional matters before the Supreme Court can decide Noel Canning. All personnel, administrative, and procurement actions requiring Board approval would grind to a halt. Such disregard for the interests of both management and labor would be feckless.

Fortunately, the Board has taken the position that “parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.” Should the Court ultimately invalidate the Block and Griffin appointments, it might well decide to validate the actions taking during their service by virtue of the “de facto officer” doctrine. That was the Court’s approach to the Federal Election Commission even as it invalidated its structure in Buckley v. Valeo. Members Block and Griffin are serving the public well by staying put and doing their jobs.

It is the contemptible indifference to effective government that ties the NLRB dispute to the now-unfolding imbroglio concerning the Internal Revenue Service. Although Republicans are comparing the IRS targeting of Tea Party groups to what happened in the Nixon Administration, the current scandal is actually the opposite of the Nixon scandal.

As charged by the 1974 House Judiciary Committee, Nixon, “acting personally and through his subordinates and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposes not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.”

There is no evidence, however, that the Obama White House acted personally to direct the IRS to do anything. All currently available indications are to the contrary. What is more, they did not even have a political appointee atop the IRS through which it could execute any such plan. What we are witnessing is the dysfunction possible when no one with the heft of a Senate-confirmed appointment is at the helm of an important agency.

During the events in question, the Commissioner of Internal Revenue was Douglas H. Shulman, a George W. Bush appointee. When he resigned after the 2012 election rather than serving the fifth year of his term, he was replaced by an acting Commissioner, Steven T. Miller, actually a civil service employee serving also as Deputy Commissioner for Services and Enforcement. Trusting civil service employees to perform in the Acting Commissioner role is apparently the pattern at IRS, which is fine as long as the Service does its job without controversy. But having an Acting Commissioner in charge of an agency when serious issues arise is problematic for a variety of reasons.

First, an acting commissioner drawn from the civil service has virtually no relationship with Congress. He or she has gone through no confirmation process, has laid no groundwork of trust with oversight committees, and is unlikely to carry much weight as an agency advocate. Further, an acting commissioner is not likely to have any real sense of accountability to the president.

President Obama has not nominated anyone since Mr. Shulman’s resignation to serve as Commissioner, and it is not hard to guess why. Republican Senators have deferred so little to the president in even his cabinet choices, stooping even to parliamentary tricks to prevent committee votes on Secretary of Labor EPA Administrator nominees, that the White House presumably saw little point to expending political capital getting Republicans to confirm a political head to an agency that they so vociferously detest. (Consider that, on May 15, the Senate voted 91-7 to confirm Marilyn Tavenner to be administrator of the Centers for Medicare and Medicaid Services. She was nominated for the position on December 1, 2011.) By denying President Obama the routine capacity to staff administrative leadership positions with qualified persons of his choosing – even officials about whom no real controversy exists — Senate Republicans have weakened the White House’s hand in accomplishing even the bureaucratic discipline that the GOP ostensibly would approve.

Senator Alexander’s implicit threat is to stall any further NLRB nominees unless Members Block and Griffin resign. But GOP intransigence has effectively made such a threat meaningless. Promising cooperation in confirming new appointees if Block and Griffin agreed to resign once successors are confirmed might be a promising strategy. But threatening to slow down an immovable wall means nothing. You can’t go slower than “Halt.”

Interestingly, should President Obama lose Noel Canning in the Supreme Court, he would not be without recourse for recess appointments. He could wait for the House to object to the Senate’s going on intersession recess and then force the adjournment of Congress for at least three weeks, during which he could fill every vacancy in the executive branch with a recess appointment. That would be an unprecedented breach of interbranch norms. It would be executive overreach at its worst — or close to it. But the constitutional text permits it — see Article II, section 3 – and really, how much worse can things get?

(An earlier version of this essay written before the resignation of Acting IRS Commissioner Miller appears on the blog of the American Constitution Society.)

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Permitting Legislative Repeal by Blocking Nominations: The DC Circuit Recess Appointment Disaster

Posted by Peter M. Shane on January 31, 2013

From early in the 20th century through the 1980s, Congress had a habit of building into some of its legislation a little device called the one-House “legislative veto.” The idea was this: Congress would enact a statute allowing some federal agency to regulate something. But, with the one-House veto, either the House or Senate could take back that authority if it did not like the regulations the agency actually issued. In other words, a majority of one House could just change the law by itself, whether or not the other House (not to mention the president) agreed.

In a 1983 case  Immigration and Naturalization Service v. Chadha, the Supreme Court put a stop to this. The Court said that any action by Congress purporting to change the rights, obligations or legal relationships of persons outside Congress amounted to an exercise of the power to legislate. The Constitution, the Court said, gives Congress only one way to legislate: Majorities in both the House and the Senate must agree on a text to enact, and the president must sign it, or two-thirds of each House must vote to override the presidential veto. Neither the House, nor the Senate is entitled to make law all by itself.

In a January 25 ruling, however, the U.S. Court of Appeals for the DC Circuit pretty much assured the Senate exactly that power. Even worse, it afforded that power not to a majority of senators, but to a minority.

At stake in the ruling was the constitutionality of three appointments President Obama made to the National Labor Relations Board on January 4, 2012, during a recess of the Senate. Chiefly because of obstruction from the senators in the Republican minority, the Senate had already established a record of allowing administrative nominees to languish before confirming even noncontroversial appointments. (This included blocking a thoroughly qualified labor lawyer from the NLRB in 2010.) Rather than waiting to see that routine repeated, the president gave recess appointments to the NLRB nominees so that the Board could begin clearing a backlog  of hundreds of cases.

The current Senate confirmation process is a well-documented disgrace. A 2010 report  by the Center for American Progress found that, after a year in office, the Obama administration lagged behind all four previous administrations in terms of the percentage of Senate-confirmed executive agency positions. This was true, even though President Obama had actually spent fewer days making nominations than the three previous presidents. The reason: The Senate took longer to confirm President Obama’s nominees to executive agencies than nominees submitted by both Presidents Bush and by President Clinton.

The same rank partisanship is evident in the Senate’s dismal record on judicial appointments. A September, 2012 report by the Congressional Research Service looked at delays in confirming non-Supreme Court nominees deemed uncontroversial. We know they were uncontroversial because (1) their nominations were eventually reported out of the Senate Judiciary Committee favorably either by voice vote or by a unanimous roll call vote, and (2) their nominations were eventually approved by the full Senate by voice vote, or if a roll call vote was held, approved with five or fewer nay votes. The report’s key conclusions regarding post-1980 judicial confirmations were as follows:

“For uncontroversial circuit court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 64.5 and 44.0 days, respectively, during the Reagan presidency to a high of 227.3 and 218.0 days, respectively, during the Obama presidency…For uncontroversial district court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 69.9 and 41.0 days, respectively, during the Reagan presidency to a high of 204.8 and 208.0 days, respectively, during the Obama presidency.”

Which brings us to the DC Circuit opinion. The Constitution provides that the president may “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.” As interpreted by three GOP-appointed judges, this power is triggered, however, only if “the recess of the Senate” happens to be the break between its annual sessions — and then, yet more surprising, only if an office actually becomes vacant during that break. Because the NLRB vacancies had not opened up during the Senate’s intersession break, and the president did not make his recess appointments during that break, the court found them impermissible.

Under this view, however, it is painfully evident what a president may do if (a) he sends to the Senate a timely nomination for an executive branch position that becomes vacant while the Senate is formally convened and (b) a minority of senators just sit on the nomination and refuse to bring it to a vote. In a word, “nothing.”

The constitutional impotence that the DC Circuit would impose on the president means that filibustering senators can prevent an agency from functioning — thus effectively repealing the law that created the agency and authorizing its functions — simply by refusing to confirm an agency head or enough voting members to constitute a quorum.

Stopping law from being enforced as written was precisely the reason why GOP senators blocked Richard Cordray’s 2011 nomination to head the Consumer Finance Protection Bureau — which led to his recess appointment also on January 4, 2012. Having seen a prior NLRB nominee blocked for ideological reasons in 2010, President Obama decided to use the recess appointments power to make sure the agency would be up and doing business throughout 2012. That’s what the DC Circuit stopped.

Of course, the Senate is not intended to be a rubber stamp. Senators who believe a presidential nominee is unqualified are entitled, if not obligated, to vote the nominee down. But stalling nomination votes simply to keep laws from being enforced — effectively repealing the laws that cannot be enforced without the nominees in place — is utterly inconsistent with the Senate’s proper confirmation role. It amounts to one-House lawmaking, and violates the spirit, if not the letter of the Constitution.

The DC Circuit opinion licenses something actually worse than the legislative veto. It allows legislation by obstruction. If the court’s ruling stands, we’re surely going to see more of it.

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Two More Reasons Why the D.C. Circuit was “Wrong” and “Wrong” on Recess Appointments

Posted by Peter M. Shane on January 30, 2013

The opinion of the U.S. Court of Appeals for the D.C. Circuit voiding President Obama’s recess appointments to the NLRB is a little like a Rob Schneider movie — the more you think about it, the worse it seems.

The opinion purports to rest on a historically grounded reading of Article II of the Constitution. The relevant text says, “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.”

All three D.C. judges read this language to mean that the President may fill vacancies only between “sessions” of the Senate – that is, between the period of time between when the Senate adjourns “sine die” (without a date) at the end of one year’s business and when it first assembles for the next year’s business. The first of these dates typically occurs in late fall. Under the Twentieth Amendment to the Constitution, the second date is now January 3 of each year.

Two of the three judges read into the language an additional limitation.  They asserted that the President may fill only those vacancies that first arise during intersession breaks. If an advice-and-consent position becomes vacant, say, on January 4, and the Senate leaves town for the whole summer after sitting on the President’s nomination for six months, the President is just out of luck. As these judges read the Constitution, the President may not even fill the vacancy if it still exists when the Senate finally does adjourn sine die.

This second conclusion is ludicrous as a practical matter, and history utterly refutes it. Felix Frankfurter wrote in his famous Youngstown concurrence: “Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.” In this case, executive branch interpretation long ago rejected the D.C. Circuit view of appointment-eligible vacancies, and Congress itself has decisively accepted the executive branch view.

In 1823, Attorney General William Wirt concluded in a formal opinion that the Article II phrase refers to all vacancies that happen to exist during “the Recess.” This was, he wrote, “the only construction of the Constitution which is compatible with its spirit, reason, and purpose.” As explained in a recent report  by the Congressional Research Service, beginning in 1855, formal Attorneys General opinions accepted the Wirt interpretation, “even with respect to newly created offices that had never been filled.” The question first reached a federal court in 1880, and that court, like every other court to reach the issue until last week, accepted the Wirt view as proper.

Yet more remarkably, we know that Congress itself has endorsed this interpretation. In 1940, Congress codified a statute, 5 USC 5503, which purports to limit the circumstances under which a recess appointee can be paid from Treasury funds. In general, the statute bars payment to “an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate.”

But Congress gave its rule three exceptions. A recess appointee may be paid “if the vacancy arose within 30 days before the end of the session of the Senate.” A recess appointee may be paid, “if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent.” A recess appointee may be paid “if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a recess appointment.”

All of these exceptions – crafted by the legislative branch itself – obviously refer to and acquiesce in recess appointments to positions that became vacant while the Senate was in session. This is nothing less than explicit congressional ratification of the position that the D.C. Circuit rejects. To quote Frankfurter again: “[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President by § 1 of Art. II.” The D.C. Circuit should have heeded this wisdom.

The court also got the first issue wrong in insisting that the only recess to which Article II refers is “the recess” between formal sessions of Congress. As a wise commenter on one of my earlier posts pointed out, this a plausible reading only if the Framers magically anticipated how Congress, not yet in existence, would organize its calendar. In fact, nothing in the Constitution suggests that the Framers anticipated that a Congress would organize itself into sessions of any particular length, much less sessions that formally begin with an opening call to order and go into “the recess” only by adjourning sine die.

In addition to the Recess Appointments Clause, references to a “session” of Congress occur in two other places in the original Constitution. Under Article I, section 5, “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.” The most natural reading of this clause is that “the Session” refers to whenever Congress is sitting. Nothing dictates that “the Session” referred to will last a day, a month, or a year.

Indeed, if “the Session” is read to refer to an assembly of specific duration, the most natural reading would equate “the Session” with an entire two-year congressional sitting, what we now call, “a Congress.” Importing that meaning into the Recess Appointments Clause would yield the remarkable result that a recess appointee who takes office early in January of an odd-numbered year might be entitled to serve for nearly four years thereafter.

Section 6 of Article I similarly provides that members of Congress “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses.” Again, “the Session” appears to refer simply to when a House of Congress is actually meeting.

It would seem to follow most naturally from these references to “the Session” that the article “the” does not really have a limiting semantic function in these clauses. The D.C. Circuit’s obsession with “the” in the phrase, “the recess,” is just nonsense. “The Recess” should be understood in the same informal, functionally sensible way as we understand “the session.” That is, when Congress is assembled to do business, it is sitting in “the Session.” When the Senate is not around to do business, it is in “the Recess.”

It might be said that my interpretation of the Constitution licenses too much executive mischief. Presidents might construe the Senate’s lunch hour as a “recess.” Or they might withhold nominations until a Senate break in order to avoid advice and consent altogether. But, of course, as recent history has shown, Congress can work mischief of its own. The Senate can hold up patently qualified nominees interminably. Or a majority of the House of Representatives may disable the Senate from going into “the recess” for no reason other than to preserve the filibustering prerogatives of a Senate minority.  My reading of the Constitution does not create a judicially enforceable route around such mischief, but it does establish parity between the branches when it comes to the appointments process, which is appropriate for a checks and balances system.

As the Supreme Court has said over a century ago and repeatedly since, “the possible abuse of a power is not an argument against its existence.” The restraints on interbranch shenanigans are most powerfully the checks and balances built into the Constitution and the accountability of our political leaders to the electorate. It may be the province of the courts to say what the law is; it is not their province to cut bright-line rules from whole cloth that run counter to text, constitutional history and good sense.

The D.C. Circuit panel just blew it.  Deuce Bigelow anyone?

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