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

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.

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

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?

Judicial Activism and Recess Appointments

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.

The Two-Mandate Myth: An Ohio View

Within moments of President Obama’s apparent victory in both popular and electoral votes, Speaker Boehner was claiming that Republicans enjoy their own mandate from the 2012 elections – Republicans kept control of the House. I’m searching in vain for a polite word for this argument.

With unemployment still near 8 per cent and a majority of voters thinking the country is on the wrong track, the Democrats nonetheless not only retained the White House, but increased their majority in the Senate and racked up a string of victories, coast-to-coast, for unmistakably progressive causes and candidates. They won these victories because, in a head to head contest with opposing views, the Democratic or, more generally, the progressive, view proved more appealing.

The reason why the Republicans still have the House is simple: gerrymandering. According to NYU’s Brennan Center for Justice, Republicans used their complete control of 17 state governments after the 2010 elections to pack Democrats into fewer “safe” Democratic districts and create 11 additional “likely” seats for Republicans – that is, seats where the GOP could be expected to routinely receive 55-60% of the vote in a two-party contest.

Not surprisingly, the Rothenberg Report, using its own definitions and polling data, found the GOP with 205 safe seats on the eve of the election; they needed to prevail in only 13 competitive races to maintain control of the House.

Consider the case of Ohio. President Obama won by two points. Sherrod Brown beat  Josh Mandel by a little over 5. With 16 congressional seats up for grabs, it would stand to reason, would it not, that the districts would split perhaps evenly?

Instead, Ohio’s House delegation will go 75% to the Republicans, with only four seats going to Democrats. All four Democrats won in packed Democratic districts. Indeed, the 11th District was so uncompetitive for Republicans, and the 8th District – John Boehner’s – so hopeless for Democrats, that those two representatives ran unopposed. Only 3 of the 16 elected representatives won by under 55 per cent of the vote. Counting the two unopposed incumbents, 8 won by over 60 per cent. Mapmaking is a beautiful thing.

Another way to look at this is to compare the total votes cast for each party’s congressional candidates. Of the 4,849,628 Ohioans who voted for a Democratic or Republican candidate for Congress in 2012, 2,545,368, or 52.5 percent, voted for a Republican and 2,304,260, or 47.5 percent voted for a Democrat. Apply these percentages to a 16-seat delegation and you get an 8-8 split if the delegation is apportioned according to the popular vote.

In gerrymandering the state, Ohio’s Republican legislature and governor not only gave the party an unearned gift of four congressional seats, but probably made it harder to recruit the strongest Democratic candidates for all contested elections. Running as a candidate in a district where voting registration favors the other party by a 20-point margin means you will not only lose, but you are unlikely to get the kind of funding or volunteer support necessary to stave off total embarrassment.

So let’s not be confused. November 6, 2012 provided a conspicuous electoral mandate for a progressive agenda in the United States. The Republicans could stack the deck for House elections (although they still lost seats, mind you). But when the dealer working a stacked deck gets a full house — or, in this case, a full House — it’s not a mandate for the dealer. It’s just the fruit of (in this case, lawful) cheating.

Why contempt case against Holder may be doomed

(CNN) – For veteran Congress watchers, President Barack Obama’s formal claim of executive privilege regarding certain Justice Department documents related to Operation Fast and Furious will generate a sense of déjà vu.

Disputes over legislative access to executive documents occur in almost every presidential administration. Their resolution inevitably entails a set of legal and political considerations that change from episode to episode.

Unfortunately for the House Committee on Oversight and Government Reform, its legal position is uncertain at best, and almost all political considerations would seem to favor the White House.

Whether or not the full House votes Attorney General Eric Holder in contempt, the likeliest resolution will be an informal settlement in which the Justice Department expands slightly on its current offer of disclosure, the committee narrows the range of documents it is demanding, or both compromise in a mutual, face-saving gesture. . . .

For the rest of my analysis, see http://www.cnn.com/2012/06/21/opinion/shane-holder-contempt/index.html

OLC’s Skillful Defense of President Obama’s Recess Appointments and Its Possible Aftershocks

The Justice Department’s release of on Office of Legal Counsel (OLC) opinion regarding President Obama’s recess appointments power is a welcome display of public accountability. However one analyzes the bottom line, the opinion is a model of the genre. It is thorough in its analysis, candid about points that are novel or untested, and serious about engaging what it acknowledges to be substantial counterarguments. This is evidence of an OLC that is doing its job.

For separation of powers aficionados, what ought to most interesting is the OLC opinion’s primary line of attack. I had earlier defended the President’s right to make recess appointments even during a three-day recess – an argument that, in a footnote, the OLC opinion holds in reserve. OLC’s main conclusion, however, is that the recent pro forma sessions were of no constitutional significance in interrupting what was effectively a 20-day recess. OLC thus followed earlier Attorney General Opinions that had judged the concept of “recess” functionally, by whether “in a practical sense the Senate is in session so that its advice and consent can be obtained.”

The OLC analysis is arguably the more institutionally modest position because it is better grounded in historical precedent. Its functional approach also resonates with Supreme Court and D.C. Circuit opinions dealing with a structurally similar question, namely, when does Congress “by their adjournment” prevent the President from returning a veto message, thus triggering the President’s power of “pocket veto” – i.e., the power to prevent an enacted measure from becoming law without an actual veto if, on the tenth day following the measure’s presentation to the President, Congress is not in session to receive the President’s message. In the 1938 case of Wright v. United States, the Supreme Court held that, even when the Senate was concededly in a three-day recess, it had not prevented the President from vetoing enacted bills because the Secretary of the Senate remained available to receive the veto message. The OLC opinion, like Wright and, even more conspicuously, Wright ‘s D.C. Circuit progeny, seeks a constitutional reading that most pragmatically facilitates the system of checks and balances by respecting the core powers of each political branch.

(Interestingly, Professor Laurence Tribe had earlier offered yet a different analysis – that the Constitution confers “an irreducible minimum of presidential authority to appoint officials when the appointments are essential to execute duly enacted statutes,” and that pro forma Senate sessions during what would otherwise appear to be a substantial recess could not defeat the President’s power when such sessions “manifestly” served no purpose other than to serve as a “transparently obstructionist tactic.”)

As much as I admire the restraint and thoughtfulness of the OLC opinion, however, I have only a limited hope that it will put a stop to interbranch game-playing. Perhaps the toughest point for OLC to counter was that, during two pro forma sessions – one last summer and one this winter – the Senate actually did pass legislation by unanimous consent, thus seeming to be “in business.” OLC’s counter to this was rather technical, namely, that the scheduling orders during which the pro forma sessions were held explicitly provided that there was to be “no business conducted.” “In our judgment,” the opinion states, “the President may properly rely on the public pronouncements of the Senate that it will not conduct business (including action on nominations), in determining whether the Senate remains in recess, regardless of whether the Senate has disregarded its own orders on prior occasions.”

That’s fair enough, but let’s imagine a few scenarios. What if, for example, the Republicans take the Senate in 2012, but President Obama is reelected? It seems quite likely that the pro forma ritual will continue, but with the Senate modifying its scheduling orders to make the possibility of doing business seem more plausible. Perhaps the pro forma sessions will occur daily, rather than every three days.

Or, imagine, as is less likely, that the Democrats retain the Senate but President Obama loses the White House. The Democrats, eager to prevent controversial nominees from getting recess appointments, could well try to prevent them the old-fashioned way – by actually scheduling floor action and voting them down. Will we then see Republicans using the filibuster to prevent such votes, not in the hope that the Senate will ever approve the nominees in question, but to keep the nominations alive and the vacancies open, so President Obama’s Republican successor may appoint them during a recess?

In our analyses of President Obama’s recent appointments, both Professor Tribe and I stressed that the appointments were limited to vacancies that, if they persisted, would prevent the agencies involved from actually executing the laws they were charged with enforcing. Of course, there is no guarantee that any successor to President Obama (or even President Obama himself on another occasion) will observe such restraint.

And, on top of all of this, the President seems to have his own textually explicit nuclear option. He is authorized by Article II to adjourn Congress unilaterally “to such time as he shall think proper.” If courts interpret the Recess Appointments Clause to require adjournments of, say, ten days or more in order to be triggered, there is no obvious bar in the text to the President adjourning Congress for ten days to accomplish precisely that end.

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 our Constitution, of course, it is “the People” who hold the supreme power. But we have effectively delegated the exercise of government power to a set of partly autonomous, partly interdependent institutions to which we have allocated both authorities and dependencies in the hope of effective governance. Yet, “forbearance of those among whom . . . power is distributed” is not much in evidence these days. As much as I applaud the President’s recent actions and the skillful defense OLC has offered, I thus find it difficult not to worry about the aftershocks.

Recess Appointments and President Obama’s Surprising Restraint

For all the brouhaha surrounding President Obama’s recess appointments this week of three new members for the National Labor Relations Board and of Richard Cordray to serve as director of the Consumer Financial Protection Bureau, what is most surprising – and most welcome from a constitutional perspective – is the President’s restraint in his use of the recess appointment power. What’s scary is the precedent it may set for other Administrations’ less judicious use of that power.

Article II of the Constitution 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.” The Constitution does not require that the recess be of any particular length or for any particular reason. The Senate was out on a three-day hiatus when President Obama made his appointments. His act squares neatly with the constitutional text.

Some observers may be confused by the Article I provision stating: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .” Because the House (at the behest of Republican Senators) is currently not allowing the Senate to adjourn for more than three days, the Senate has been going through a repeated ritual of convening in “pro forma” session every third day, but without any capacity to do legislative business. (Harry Reid invented this technique in 2007 to forestall recess appointments by George W. Bush.) But there is no constitutional requirement that a Senate recess triggering the President’s appointments power be an adjournment to which the House of Representatives has consented.

The most colorable objection to the Obama recess appointments is that they arguably flout a norm, or informal custom, of interbranch interaction. That is, Presidents ordinarily do not resort to their recess appointment power during short recesses. It is understood on both sides that the Framers originally contemplated a Congress that would convene only a few months a year. They gave the President a power of recess appointment so that he could keep the government functioning effectively even when federal legislators had returned to their far-flung farms, law offices, or other places of non-government business. Recognizing that the recess appointments power was thus conferred for a limited purpose and not in order for Presidents to lightly circumvent the Senate’s confirmation role, Presidents have typically – though not invariably – used their recess appointment power sparingly. (A good nonpartisan account appears here.)

As I argued in my 2009 book, Madison’s Nightmare, norms of this sort are essential to the effective functioning of any separation of powers system – perhaps to any non-dictatorial system of government at all. A system of separated powers can work only if each branch refrains from pressing its powers to the utmost limits of textual plausibility under a written Constitution. However aggressive the interbranch competition for policy influence, each branch must ultimately respect the purposes and capacities that the Constitution assigns to its sister branches. From the end of the McCarthy era through the end of the Carter Administration, Congress and the executive typically acted in this spirit of mutual restraint, even as the country navigated its way through the upheavals of Vietnam and the civil rights revolution.

Since the Reagan Administration, however – and most especially since the second Reagan Administration – these norms have been under steady attack. The attackers usually – though not invariably – are right-wing Republicans who quite correctly view a checks and balances system as an obstacle to their capacity to jerk our national government onto a profoundly more conservative course than is warranted by public sentiment.

For example, nothing in the Constitution explicitly forbade the Reagan Administration to circumvent the appropriations process and fund its own foreign policy in Central America. Nothing in the Constitution explicitly rejects lying about a sexual affair as a ground for impeachment. Nowhere does the Constitution impose a time limit on Senate consideration for routine executive and judicial appointments. But the Iran-Contra affair, the Clinton impeachment, and the GOP use of the Senate filibuster to impose unprecedented delays in staffing both the executive and judicial branches nonetheless stand out as breaches of constitutional governance. These practices may or may not be unconstitutional, but they exhibit a glaring disrespect for the purposes and capacities assigned to non-GOP-controlled government institutions.

Seen in this light, President Obama’s recourse to his recess appointment power was really the only plausible way of responding to a pattern of Senate behavior – induced by the Republican minority – that paid no regard to his authority and obligation to appoint officers of the United States to a host of positions critical to effective governance. It is notable that he targeted his latest appointments with just that limiting principle in mind – that is, he filled vacancies only in agencies that were utterly disabled from carrying out their legally assigned missions because leadership nominations were languishing in the Senate.

Constitutionally, President Obama could have gone further. He could have filled other executive branch positions that the Senate has been holding hostage for reasons unrelated to the merits of the nominees. He could have filled judicial vacancies. He could have used his power under Article II to adjourn Congress, thus creating his own recess of the Senate during which he could make these appointments.

That President Obama has not gone to these lengths demonstrates a commendable inclination to continue to respect the Senate’s confirmation power. It also continues a tradition of making recess judicial appointments only in extremely rare circumstances, in large part because – although such appointments are constitutional under the text – their limited duration stands in tension with the Framers’ conspicuous commitment to judicial independence, embodied in the constitutional guarantee of lifetime tenure.

Some Senate Republicans have apparently reacted to President Obama by threatening to be even less cooperative with the executive branch. But it’s hard to see how much less cooperation they could offer. The intransigence of the House Tea Party Caucus, plus the GOP Senate minority’s filibuster abuse, has rendered the 2011 session of Congress the least productive in terms of non-trivial legislation since the late 19th century. The White House has correctly discerned that the public has tired of this obstinacy. As Larry Lessig has said, our uncooperative Congress has earned approval ratings probably lower than the approval ratings of Parliament in the thirteen colonies on the eve of the American Revolution. (One suspects, if the public were yet more familiar with the bills the House was trying to pass, its opinion would actually be even lower.) For this reason, the White House is surely undaunted by the prospect of congressional hearings examining its appointments powers. The charts and graphs the Administration can produce illustrating the current Senate’s unprecedented delays for even the most routine appointments would make for impressive video.

The real danger in the latest recess appointments is that subsequent Presidents may well use President Obama’s expansive understanding of “recess” to staff courts and agencies with controversial nominees who they know Senators are opposing on the merits. In a fine analysis of the situation, Larry Tribe has argued that the Cordray and NLRB appointments do not “free the president to make recess appointments whenever the Senate breaks for lunch or takes routine weekend vacations that conceal no objective scheme to frustrate presidential appointments.” He concludes that “the president can resort to recess appointments of this kind only in instances of transparent and intolerable burdens on his authority. Article II charges him to ‘take care that the laws be faithfully executed’; this duty, combined with appointment and recess-appointment powers, requires an irreducible minimum of presidential authority to appoint officials when the appointments are essential to execute duly enacted statutes.”

I have two related fears about this speculation, however. The first is that, although Professor Tribe has stated an excellent limiting principle for the exercise of the recess appointments power, it is not clear that courts would enforce it. Federal courts typically resist getting in the middle of power clashes between the elected branches, and sorting out which recess appointments are and are not proper under even a normatively compelling (and easy to enforce) constitutional principle may simply be a job they are unwilling to do.

My second fear is based on the right-wing’s willingness – even eagerness – to accelerate whatever innovations in interbranch struggle that the Democrats originate. The Democrats want to filibuster appellate court nominees? Fine, the Republican will filibuster trial court nominees. A Democratic Senate majority comes up with an “in forma session” ruse to try to stop a Republican President from making recess appointments? Fine, a GOP Senate minority will seek to accomplish the same result by enlisting the GOP House majority to stop the Senate majority from adjourning. Talk about using a constitutional power for an unintended purpose!

President Obama’s most recent recess appointments are themselves a modest counterpunch against attempts by House and Senate Republicans to subvert his capacity to perform his constitutionally assigned role. If the Senate wants the President to back off, it should start performing its confirmation role responsibly. If recent history is any guide, however, Republican leaders – who no doubt hope to control both ends of Pennsylvania Avenue in 2013 – will be thinking up rather different contingency plans should divided government persist. These plans are likely to intensify an already corrosive breakdown of interbranch norms of respect and cooperation that are the key to effective governance.

“Job Creators” or “Hostage Takers?”

When I started blogging occasionally for Huffington Post, I resolved to confine my use of this platform to issues on which my professional background in constitutional and administrative law would give me (and any readers I might have) the advantage of some actual expertise.

On this particular occasion, however, with our political system seemingly stuck at the depths of dysfunction, I feel the need to rant. The occasion is yesterday’s speech by House speaker John Boehner (R-OH) to the Economic Club of Washington. This is how he summed up the current state of the economy: “Job creators in America are essentially on strike.”

To be “on strike” is a telling metaphor — especially interesting if one suspects, as I do, that Speaker Boehner is typically not in sympathy with strikes. To strike, by definition, is to refuse voluntarily to perform the work you would otherwise be doing — the kind of thing that right-wing pundits would normally call “extortion.”

So, I have a proposal. From now on, instead of using “job creators” to identify the businesses that are sitting on huge piles of cash, raking in unprecedented corporate profts, and benefiting from tax breaks and bailouts that have underwritten a cushy life for unaccountable CEO’s, let’s call them what they really are: “hostage-takers.”

The hostages are us.

The hostage-takers want you to believe that tax cuts are always good for the economy. So, how did we do after the Bush tax cuts? As summed up by Ronald Brownstein,

On every major measurement, the Census Bureau report shows that the country lost ground during Bush’s two terms. While Bush was in office, the median household income declined, poverty increased, childhood poverty increased even more, and the number of Americans without health insurance spiked. By contrast, the country’s condition improved on each of those measures during Bill Clinton’s two terms, often substantially.

The hostage-takers want you to believe that regulations kills jobs and, let’s face it, those child labor laws really did kill factory work opportunities for 10-year olds. But regulations can actually create jobs, by generating markets for new goods and services, and by boosting consumer demand as a result of increasing confidence in the marketplace.

Excessive regulation is hardly the problem that created the housing crisis and banking sector meltdown. Quite the reverse. So, to say that regulations per se are the enemy of growth is just wrong.

The hostage-takers want you to believe that all business needs in order to start hiring again is “certainty.” Guess what? There is no “certainty” in the economy; there is only risk. Political scientist Jacob Hacker has documented in compelling terms what he calls the “great risk shift” — the poisonous trajectory of right-wing public policy in which the corporate elite and their political allies have shifted economic risk from their shoulders and placed it on the shoulders of workers and the middle class, who now have less job security, fewer benefits, and a lower median wage, even as productivity improves.

I now have a modest proposal. Let’s stop negotiating with hostage-takers. Let’s stand up to them. Let’s insist that the machinery of government was not designed to accelerate the concentration of wealth in the hands of a very few, while the rest of the population experiences the worst poverty rate in decades and the most dramatic income inequalities in nearly a century. Let’s remind the hostage takers that ours was intended to be a “government of the people, by the people, and for the people.”

And we don’t pay ransom.

Memo to Obama: Use Market Jitters to Seize the Initiative

Thanks to the debt ceiling deal no one liked, official Washington seems poised now to wait for a cumbersome congressional process to drag the country again through an extended spectacle of pathetic political gamesmanship. Critical points on the time line between now and January 1 include the end of the fiscal year (September 30), at which point the government shuts down unless appropriations are enacted, the November 23 reporting date for the congressional Committee of Twelve, and the December 23 deadline for a congressional vote to head off sequestration. As things stand, we can expect an eleventh-hour, 59th-minute political nightmare on each of these dates.

Here’s an idea for the president: Don’t wait. Seize the initiative. Offer a progressive plan within the next two weeks, and demand Congress enact it by the end of the fiscal year.

The parameters for the plan should be straightforward. The Committee of Twelve is supposed to produce $1.5 trillion in deficit reduction. Make $2 trillion your target. But achieve half that deficit reduction through revenue enhancement and economic growth generated by a redirection of government spending away from low-return subsidies and towards investment in infrastructure, the clean energy sector, and research and development, plus short-term stimulus through extended unemployment insurance and a payroll tax moratorium.

And now for the hard part: Announce you are putting on the table the option of an October 1 government shutdown unless Congress enacts a plan that you find acceptable – a plan that must be jobs-and-growth oriented, protective of the middle class, and focused on revenues, not just cuts. (At the very least, this will tempt the GOP to taunt you with a continuing resolution too good not to sign.)

You will be standing on high ground. Just keep repeating the words, “families,” “middle class,” “growth,” and “jobs.” The markets want to see the United States take actual leadership and show it can address problems before we have a gun, already cocked, to our collective head. Please lead the way.

What the President Should Say If Congress Misses the Debt Ceiling Deadline

My Fellow Americans:

Today, for the first time in American history, the Congress of the United States has effectively prohibited the government from paying its bills. In the last 50 years, the debt ceiling has been raised 74 times, ten of those times since 2001. Those votes have been bipartisan. They have occurred under both Democratic and Republican presidents. They have been all but universally regarded as essential to preserving the full faith and credit of the United States. Yet a minority faction of today’s congressional representatives — in the face of proposed deficit-cutting plans with overwhelming support from the American people — has taken the unprecedented step of allowing us to slide into potential default.

As a result of this inaction — this betrayal of the trust of the American people — we must face a hard truth. If the government continues to spend the funds Congress has already appropriated at the rate Congress anticipated when it appropriated those funds, we will simply run out of money before the end of the fiscal year. We will face an across-the-board government shutdown, with no end in sight. We cannot let this happen.

Because this situation is unprecedented, there is simply no clear law to guide my actions in response to this crisis. Read literally, the Congressional Budget and Impoundment Control Act of 1974 allows me to defer spending that Congress has already authorized on the basis of what that statute calls “contingencies.” It has been argued that I may use that authority to choose selectively, designating obligations to meet now and obligations to defer in order to avoid a shutdown of government services. At the same time, I am also aware of arguments that the Act does not give me such authority — that a statute intended to control impoundments cannot faithfully be interpreted to allow a president to postpone so much spending at his sole discretion. If these critics are right — if the Impoundment Act does not give me such authority — then my decisions not to spend money on particular programs would violate the many statutory provisions under which Congress mandated that those funds be spent.

It has also been argued that Section Four of the Fourteenth Amendment allows me to ignore the statutory limit on incurring government debt. That section provides, “The validity of the public debt of the United States, authorized by law . . . shall not be questioned.” Some legal scholars argue that this provision authorizes the president to continue borrowing whatever funds are necessary both to meet our obligations to creditors and to continue funding government programs at the levels Congress has already approved. I have already expressed my doubts about the validity of this interpretation. I have been inclined to agree with those who read Section 4 as obligating Congress to provide for the repayment of debt, not to permit the president to ignore statutory limits on borrowing.

The fact is, however, that I am now faced with a no-win choice. I could cease government borrowing and defer some government spending, on a selective basis, under the uncertain authority of the Impoundment Control Act. But that would risk violating the many statutory provisions under which Congress has provided for government spending. I would risk disabling key government programs from operating effectively. Alternatively, if I continue government borrowing under the uncertain authority of the Fourteenth Amendment, then I will certainly be violating the statutory limit on federal debt and I will perhaps be misinterpreting our most fundamental law.

Let me clear about this conundrum. The Constitution obligates the president to “take care that the laws be faithfully executed.” I cannot duck that obligation. Yet, if I rely on one statute to withhold some government spending in order to advance what I regard as our critical priorities, then I risk violating some of the statutes through which Congress has directed the executive branch to spend money. The government spends only money that Congress appropriates; spending as Congress directs is, in most cases, a legal obligation. On the other hand, if I continue borrowing to fulfill these congressional mandates and to repay government debts that were lawfully incurred, then I am violating the debt ceiling and risk misinterpreting the scope of the Fourteenth Amendment. The legal path is not clearly marked either way.

Faced with this choice, I am compelled by both conscience and necessity to take the latter option. Deferring government spending under the Impoundment Control Act would require me to claim unprecedented discretion to pick and choose among programs that Congress has already determined to move forward. It would also leave the full faith and credit of the United States at risk, and impose numerous and unforeseen hardships on Americans who depend on the smooth and efficient operation of government programs already in place. If, however, I breach the statutory limit on borrowing, my assertion of power under the Fourteenth Amendment has a clear limit.  I can borrow no more than required in order to repay those debts that have been already been incurred pursuant to law without curtailing those government programs for which Congress has appropriated funds.  This is not a blank check. It is fulfilling a set of mandates that Congress itself has imposed.

I have thus decided to continue borrowing funds on behalf of the United States in order to repay those debts that have been already been incurred pursuant to law and to continue those government programs Congress has already authorized. In so doing, I believe I am faithfully executing both Congress’s current appropriations statutes and the intent of the framers of the Fourteenth Amendment to insure that the federal government would never repudiate its lawfully incurred obligations.

I would welcome congressional action to ratify this decision by statute. I would welcome even more the kind of balanced approach to debt reduction, deficit-cutting, and revenue enhancement that I have been urging on Congress for months and that can finally put our fiscal house in order for the next decade and beyond. Until Congress can reach some such agreement, however, I owe it to Congress and to the American people to stave off irreparable economic harm and to keep in effective operation the functions of our federal government for which Congress has already provided and on which the American people rely.

Thank you, and may God bless you and the United States of America.