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?

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.

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.

Negotiations 101: Why Don’t Congressional Democrats Do the Obvious?

Having much training in public law and very little in practical politics, I tend to think I must be missing something when people in power do not do what looks like what would obviously be in their interest.  But Democratic behavior in Congress is so counterproductive that I cannot resist pointing out two lessons they would surely pick up in an introductory course on negotiations.

First, if you want someone to negotiate, negotiation has to promise a better result than what professionals call the “best alternative to a negotiated agreement,” or BATNA.  Right now, for Congressional Republicans, the alternative to virtually any health care bill that could possibly pass is the status quo.  Republicans are happy with the status quo (or at least they realize that alternatives they might like better, such as draconian malpractice caps and the privatization of Medicare, won’t happen.)  So, why negotiate?

That’s why Democrats should do two things.  They should say to Republicans, “You want to start over?  Fine.”  But first, the House must adopt the Senate health care reform bill.  That would put in play an actual health care reform plan as the actual, real-live, not just imaginary alternative to negotiation.  Then, Democratic and Republican negotiators should give themselves a three-month deadline to strike a bipartisan deal that starts over from scratch.  If they do, great.  If not, at least the Democrats will have accomplished something.  Most immediately, they will have changed the momentum for negotiations.

Second, as others have observed, Democrats and Republicans in Senate face what game theorists call a “prisoner’s dilemma.”  Imagine police have two suspects they believe committed a crime.  They cannot prove it unless one testifies against the other.  The police say to each, “If you testify, you’ll only serve a year in jail and the other guy will serve ten.  But the deal goes only to the one who caves first.”  Neither prisoner should want to cave; they should cooperate with each other and maximize their joint welfare.  But each knows that, if he alone cooperates with his fellow prisoner, but the other caves in, the non-testifier will be much, much worse off than if he had simply abandoned the other.

I believe the major sourcce of public contempt for Congress — and contempt may not be too strong a word — is that Congress seems incapable of doing ANYTHING.  If Congress appeared to be tackling actual problems with imperfect, but incrementally helpful solutions, incumbents from both parties would find their approval ratings going up.  But maximizing the parties’ joint welfare requires cooperation — the equivalent, in the prisoner’s dilemma, of not ratting out.  But, unless there’s going to be some real promise of give on both sides — some actual bipartisanship — each side may think itself better off by posturing for its base.  (Here, however, one has to note that the Democrats do not seem good even at posturing.)

Game theorists have shown that there is one superior strategy for overcoming the prisoner’s dilemma if you have repeat players.  The strategy is called “tit for tat.”  One side offers cooperation; if the other side cooperates, repeat.  If not, retaliate — and hard.  Then, keep doing this strategy over and over.  The idea, through a series of repeat encounters, is to show that playing nice always produces good outcomes, and not playing nice always produces harm to the non-cooperating party.

What this means for the Democrats is that, as a consistent strategy, (1) they have to offer something that Republicans want as a means to induce cooperation, and (2) they have to have plausible retaliation strategies if cooperation does not happen.

Of these two lessons, the first is a no-brainer.  Unless the Democrats change the GOP’s BATNA, they will not negotiate. 

The second lesson should work, too — unless the Republicans actually do not want anything from the Democrats.  If the Republicans believe that doing nothing is always the superior strategy, then the Democrats have to think relentlessly about what they can accomplish by themselves.  Doing nothing and just blaming the Republicans spells weakness.  With a majority in the House and a 59-member caucus in the Senate, if the Democrats cannot enact legislation, voters are unlikely to give them more seats to work with.

A final note to Congressional Democrats:  The Republicans in Congress seem to have taken the introductory negotiations course — probably also the intermediate course — and gotten A’s.  You need to enroll and aim for a grade better than “Incomplete.”