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Judicial Activism and Recess Appointments

Posted by Peter M. Shane on January 25, 2013

On Wednesday, January 4, 2012, President Obama appointed three new members for the National Labor Relations Board.  He also named Richard Cordray to serve as director of the Consumer Financial Protection Bureau.  To do so, he invoked his recess appointments power under Article II, Section 2, paragraph 3 of the Constitution.  This is the power “to fill up all Vacancies that may happen during the Recess of the Senate.”

The majority Democrat Senate, in this case, had previously convened most recently on Tuesday, January 3, 2013 for a session that lasted 41 seconds.  These 41 seconds were devoted to two items.  The first was a reading by the Senate clerk of a letter from the Senate’s then-President Pro Tem, Senator Inouye.  The letter confirmed the appointment of Senator Mark Warner for the day to perform the duties of the Chair.  The second item was Senator Warner performing exactly one such duty.  Namely, he adjourned the Senate until its 29-second session on Friday, January 6.  Senators living close to D.C. had been performing these rituals at three-day intervals since December 20, 2011.  Their performances implemented a Senate order, adopted by unanimous consent on December 17, providing that the Senate would then adjourn but, until January 23, 2012, convene every three days for “pro forma sessions only, with no business conducted.”  The reason for this ritual was the decision of the majority Republican House of Representatives, under Article I, Section 5, Paragraph 4 of the Constitution to withhold its consent to a Senate adjournment of longer than three days.  The House Republicans were of the view that keeping the Senate on a three-day leash would prevent the President from making recess appointments and doing an end-run around the Senate Republicans’ filibusters.

For all the controversy surrounding these appointments, they were clearly constitutional if either of two things is true.  They were constitutional if, despite the pro forma sessions, the Senate was in recess from December 20 until January 23.  If that hiatus amounted to a “recess” for purposes of Article II, Section 2, then the President’s exercise of his appointment prerogative was permissible.  The appointments would also be constitutional, of course, if the three-day hiatus between January 3 and January 6 was a “recess” for constitutional purposes.  The President had plausible arguments either way.

On Friday, January 25, 2013, however, three GOP-appointed judges on the U.S. District of Columbia Circuit held the NLRB appointments unconstitutional.  The NLRB, the court found, had properly determined that the petitioner, Noel Canning, had committed an unfair labor practice.  However, the Board’s order could not be enforced because three of its members were appointed unconstitutionally and, without those members, the Board lacked a quorum.

This is not a slam dunk legal issue.  The Justice Department’s Office of Legal Counsel had issued a well-reasoned opinion asserting the permissibility of the appointments.  For his part, Charles J. Cooper, a former OLC head under President Reagan, provided a thoughtful rebuttal in testimony to the House Education and Workforce Committee.

What is striking, therefore, about the D.C. Circuit opinion is not its bottom line, but the scope of its reasoning.  Despite a pretense of constitutional modesty, the court decided the Recess Appointments issue — which the appellant had not raised to the NLRB itself — on the broadest possible ground. The court decided not that the Senate’s pro forma sessions prevented it from having a sufficiently long recess or even that its conceded three-day adjournment was too short to count as a recess. Instead, it held that recess appointments may occur only if the Senate is between sessions, for example, after it has adjourned for the first session of the 113th Congress, but before the 2nd session convenes.

Then, for good measure, two of three judges held the appointments impermissible because the NLRB seats did not actually become vacant during such an intersession recess. As they read the Constitution, unless an office actually becomes empty during a recess, it cannot be filled during a recess.  (As the third judge observes in a separate opinion, this second holding disregards about 190 years of contrary understanding by Congress and the Executive.)

Regarding a different body — a judicial appointment, in fact — the U.S. Court of Appeals for the Eleventh Circuit has squarely held that presidents may make recess appointments within sessions of the Senate, not just between them.  Because of the conflict now between two circuits, there seems little doubt that, if the Administration wants to bring the NLRB case to the Supreme Court, the Court will hear it.

The court’s key defense of its interpretation of “recess” to mean only a recess between sessions is that no other interpretation would provide the courts an easy-to-implement bright-line rule.  It is worth noting, however, that – like many bright-line rules – this one makes little sense.  As recounted by Senate associate historian Betty K. Koed (and quoted by reporter Al Kamen), “At high noon on Dec. 7 1903,” the Senate president pro tem brought down the gavel to end one session of the Senate and then immediately brought a second session to order.  “In that moment between sessions,” she wrote, “during that split-second of time it took . . . to wield the gavel, President Theodore Roosevelt made 193 recess appointments.”  These appointments would have satisfied the D.C. Circuit’s bright-line rule.

Conversely, should the 2013 Senate, within a single session, now leave town for three months with key executive branch positions unfilled, the President – according to the D.C. Circuit – may do nothing.  I dissent.

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