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

Posted by Peter M. Shane on June 27, 2013

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

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

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

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

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

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

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

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

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

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

Posted by Peter M. Shane on May 28, 2013

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

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

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

THE PRO FORMA SESSION GAMBIT

The Noel Canning decision arose in the context of an ongoing struggle between presidents and Congress over the use of the recess appointments power. The Constitution conveys that power in a paragraph that authorizes the President “to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”3

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

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

CRISES AT THE NLRB AND CFPB

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

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

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

THE COURT’S REASONING IN NOEL CANNING

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

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

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

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

AN AUDACIOUS OPINION

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

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

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

In making his January, 2012 appointments, Obama acted under Justice Department advice memorialized in a Jan. 6, 2012, Office of Legal Counsel memorandum that relied, in turn, on earlier institutional precedents. In an official 1921 opinion for President Harding, Attorney General Harry M. Daugherty adopted a functional view of “recess,” derived from a 1905 Senate committee report; the 2012 OLC memo follows the same approach. The Senate committee asserted: “The word ‘recess’ is one of ordinary, not technical signification, and it is evidently used in the constitutional provision in its common and popular sense.”13 The report went on describe the Senate as being in recess when “its members have no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the president or participate as a body in making appointments.”14

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

WEIGHING THE ARGUMENTS

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

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

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

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

IMPACT ON THE AGENCIES

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

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

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

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

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

ANTICIPATING THE SUPREME COURT

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

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

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

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

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

THE FUTURE OF RECESS APPOINTMENTS – AND OF CONGRESS

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

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

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

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

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

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

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

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

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

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

[2]   705 F.3d 490 (D.C. Cir. 2013).

[3]   U.S. Const., Art. II, § 2, ¶ 3.

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

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

[6]  130 S. Ct. 2635 (2010).

[7]   12 U.S.C. § 5586(a).

[8]   5 USC § 5503.

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

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

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

[12]   Id.

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

[14]   Id.

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

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

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

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

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

[20]   Id.

[21]   U.S. Const., Art. II, § 3.

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

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

[24]   Id. at 180-81.

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

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

[27]   Id.

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

Posted by Peter M. Shane on May 28, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Occupy the Constitution 2.0

Posted by Peter M. Shane on December 16, 2011

I cannot say that my earlier suggestions for a pro-democracy constitutional amendment have ignited a firestorm of grassroots activity. They have, however, elicited enough email responses to prompt my attempt at a yet better-drafter version.

Members of Congress have already proposed a constitutional amendment to deal, in particular, with the Citizens United problem, and the Supreme Court’s general hostility towards campaign finance regulation. As critical as these moves are — I wholeheartedly recommend Larry Lessig‘s Republic, Lost for a compelling analysis of how money has corrupted our political system — I do not believe they are sufficient to generate the kind of revitalization our political system needs if we are ever to replace our entrenched plutocracy with more genuinely democratic government.

Revamping our political landscape in the name of democracy requires, I believe, four critical changes: the legitimation of campaign finance regulation, authority for public financing to reduce the impact of disparate fund-raising among candidates, the constitutionalization of federal voting rights, and legal protection against gross gerrymandering. The following draft amendment embodies this four-part strategy — with thanks to readers who have offered friendly amendments to the amendment.

Draft Pro-Democracy Constitutional Amendment

Sec. 1. Congress may regulate political contributions and independent expenditures regarding elections for any federal office as may be reasonable to protect the fairness and integrity of such elections. Such regulations may include the prohibition of political contributions and expenditures by commercial, for-profit corporations for any federal office.

Sec. 2. States and the District of Columbia may regulate political contributions and independent expenditures regarding elections for any state or local office, or on behalf of any state or local referendum, within their jurisdiction, as may be reasonable to protect the fairness and integrity of such elections. States may delegate such regulatory authority for local offices, referenda and initiatives to the relevant local governments. District of Columbia, state and local regulations may include the prohibition of political contributions and expenditures by commercial, for-profit corporations for any office, or on behalf of any initiative or referendum, within the relevant jurisdiction.

Sec. 3. Regulations adopted pursuant to this Amendment may not have as their purpose the suppression of, or discrimination against, any particular political viewpoint.

Sec. 4. No citizen of the United States who has reached the age of 18 may be denied the right to vote in any election for state or federal office or any referendum, initiative or similar ballot contest conducted in the state of which he or she is a duly registered domiciliary. No citizen of the United States who has reached the age of 18 may be denied the right to vote in any election for local office or any referendum, initiative or similar ballot contest conducted in a local jurisdiction of which he or she is a duly registered domiciliary. Any election regulation that has the purpose or effect of denying the right to vote that is not narrowly tailored to serve a compelling and legitimate government interest shall be unconstitutional. States shall adopt affirmative measures to ensure that citizens may conveniently exercise the rights guaranteed by this section.

Sec. 5. In districted elections for federal, state or local office, every citizen of the United States who has reached the age of 18 shall have the right to vote in a fairly apportioned district that implements the principle of one person, one vote and that has not been drawn substantially for the purpose of defeating political competition and preserving the majority status within that district of any political party.

Sec. 6. Congress may provide for the funding of elections in connection with any federal office. Should any candidate in a publicly funded federal election choose to decline public funding, Congress may permit adjustments to the subsidies provided other candidates according to the fundraising and spending of their privately financed opponents.

Sec. 7. States and the District of Columbia may provide for the funding of elections in connection with any state or local office. Should any candidate in a publicly funded state or local election choose to decline public funding, the state or relevant local jurisdiction may permit adjustments to the subsidies provided other candidates according to the fundraising and spending of their privately financed opponents.

Sec. 8. Congress may enforce the rights protected by this Amendment through appropriate legislation.

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Occupy the Constitution

Posted by Peter M. Shane on October 13, 2011

The Occupy Wall Street movement has brought a level of energy and inspiration to participatory Left politics unseen since the 2008 Obama campaign and with, perhaps, yet more enduring potential.

Among admirers who are unfazed by the pathetic attempts at trivialization voiced by Republican politicians and their media propagandists, the chief anxiety seems to be the absence of a specific policy agenda around which to rally the citizenry.

If OWS is to become a lasting force, however, in American policy, its objectives have to go beyond policy proposals that aim at ameliorating our short-term economic distress. The movement has to try to reshape the institutions through which we conduct our politics. Government “of the people, by the people, and for the people” will remain an unlikely prospect as our political institutions are now rigged.

And there is simply no hope of doing the work that needs doing unless significant changes are made to the Constitution of the United States.

Larry Lessig has made an overwhelming case that money is corrupting our democracy. Money has that power, in part because the Supreme Court has interpreted the Constitution to protect plutocracy. But our Constitution, as interpreted by the Court, also lets transient majorities in state legislatures so finagle our legislative elections as to undermine genuine electoral competition. If our “representatives” don’t have to compete for our votes, their positions are quite unlikely to mirror our preferences.

Consider that, in the convulsive 2010 congressional mid-term elections, 87 percent of the incumbents who stood for election were re-elected — this, at a time when public approval of Congress was in the low 20s. If nearly nine out of ten incumbents get to keep their jobs even when the public hates their handiwork, what kind of democratic accountability do our elections actually provide?

It is commonly said that high rates of incumbent retention reflect a world in which voters despise Congress, but love their local representatives. There is, of course, another explanation: legislatures have stacked the deck in favor of protecting incumbents.

There are many ways in which our Constitution undermines democracy. The legislative disenfranchisement of the District of Columbia, the setup of presidential elections and the malapportionment of the Senate are all conspicuous examples. Yet, if recent history is a guide, changing any of these provisions — the makeup of the Senate could not be undone without a new constitutional convention — would be extremely difficult.

It should be less contentious, however, to rally around three ideas that ought to elicit widespread public support across a considerable political spectrum — undoing the constitutional protection for corporate spending, expanding the adult franchise so that all Americans can vote and authorizing the public funding of elections. Toward that end, I have appended below yet another draft of what a pro-democracy constitutional amendment could look like.

Rep. Jesse Jackson, Jr. wrote some years ago of his puzzlement that the American Right seemed always ready, willing and able to rally around proposed constitutional amendments, no matter how improbable — whether it’s a “Human Life” amendment, or a pro-school prayer amendment, or now an anti-gay-marriage amendment. Would it not seem more promising to organize the American people around a constitutional ideal in which people actually believe, namely, democracy?

To cement its role as a new anchor for the Left in American politics, OWS participants should endorse both policy proposals to increase economic fairness and prosperity in the short-term and constitutional changes that will restore government accountability as a meaningful aspiration in America.

DRAFT PRO-DEMOCRACY CONSTITUTIONAL AMENDMENT
Sec. 1. The freedom of speech shall not be construed to deny Congress authority to prohibit or otherwise regulate political contributions and expenditures by commercial, for-profit corporations for any federal office.

Sec. 2. The freedom of speech shall not be construed to deny authority to the States to prohibit or otherwise regulate political contributions and expenditures by commercial, for-profit corporations for any state or local office, or for any state or local referendum or initiative, within their jurisdiction, and or to delegate such regulatory authority for local offices, referenda and initiatives to the relevant local governments.

Sec. 3. No citizen of the United States who has reached the age of 18 may be denied the right to vote in any election for state or federal office or any referendum, initiative or similar ballot contest conducted in the state of which he or she is a duly registered domiciliary. No citizen of the United States who has reached the age of 18 may be denied the right to vote in any election for local office or any referendum, initiative or similar ballot contest conducted in a local jurisdiction of which he or she is a duly registered domiciliary. Any election regulation that has the purpose or effect of denying the right to vote that is not narrowly tailored to serve a compelling and legitimate government interest shall be unconstitutional. States shall adopt affirmative measures to ensure that citizens may conveniently exercise the rights guaranteed by this section.

Sec. 4. In districted elections for federal, state or local office, every citizen of the United States who has reached the age of 18 shall have the right to vote in a fairly apportioned district that implements the principle of one person, one vote and that has not been drawn substantially for the purpose of defeating political competition and preserving the majority status within that district of any political party.

Sec. 5. Congress may provide for the funding of elections in connection with any federal office. Should any candidate in a publicly funded federal election choose to decline public funding, Congress may permit adjustments to the subsidies provided other candidates according to the fundraising and spending of their privately financed opponents.

Sec. 6. States may provide for the funding of elections in connection with any state or local office. Should any candidate in a publicly funded state or local election choose to decline public funding, the state or relevant local jurisdiction may permit adjustments to the subsidies provided other candidates according to the fundraising and spending of their privately financed opponents.

Sec. 7. Congress may enforce the rights protected by this Amendment through appropriate legislation.

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“Job Creators” or “Hostage Takers?”

Posted by Peter M. Shane on September 26, 2011

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.

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Memo to Obama: Use Market Jitters to Seize the Initiative

Posted by Peter M. Shane on August 10, 2011

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.

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