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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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