Commentary Magazine


Topic: recess appointments

The President Versus the Constitution

Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

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Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

Democrats may have a point when they claim Boehner’s lawsuit is more of a stunt than a policy initiative. It is doubtful that the courts will force the president’s hand when it comes to bypassing Congress on immigration by selective enforcement of laws or by the use of executive orders when the House and the Senate fail to pass the legislation he wants. Even if the case does go forward, the odds are it will not be resolved until after President Obama leaves office in January 2017.

But Boehner is right to stand up for the Constitution and a system of checks and balances and against Obama’s notions of an imperial presidency that increasingly seem aimed at allowing him to govern alone without Congress.

Thus, the Supreme Court’s willingness in National Labor Relations Board v. Noel Canning to put some limits on the president’s power to make recess appointments is an encouraging sign that the march to one-person rule can be checked if not altogether halted.

As our John Steele Gordon noted earlier, the practice of allowing recess appointments, including those for vacancies that arise while Congress is in session, is not authorized by the Constitution but has become routine in the last century. While properly ruling that President Obama’s appointments to the National Labor Relations Board were illegal, the majority of the court sought to curb what it believes to be an excessive use of the practice. The decision held that congressional breaks of less than 10 days could not be interpreted as being sufficient to justify the president invoking his recess appointment power. That’s reasonable, but as Justice Antonin Scalia noted in his concurring opinion, by also saying that such appointments would be legal even if they came in the middle of an existing session, the court has read the law in such a way as to still leave the president far too much leeway to abuse the Constitution. The Constitution only authorizes the executive to make such an appointment when a vacancy comes up during an actual recess, not every such opening including ones that date back to times when Congress is in session.

As Scalia writes:

The notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting. But that, in the majority’s view, is what the text authorizes.

Though he concurred with the majority that the NLRB appointments were illegal, Scalia rightly points out that such unilateral actions by the president could only be approved under extraordinary circumstances. But no such circumstances applied to this case or, for that matter, just about any other recess appointment made by any president in recent decades.

It should be remembered that the concept of recess appointments stems from the political realities of government in pre-20th century America. With a few exceptions during periods of national emergency, prior to the Great Depression Congress met for only a few months every year. Recesses then were not matters of a few days or weeks but several months. Even when a special session of Congress was called, travel in the horse-and-buggy era meant that it was simply impossible for the legislative branch to assemble quickly. Vacancies that arose during this period could, if forced to wait for the Senate to exercise its right to advise and consent to appointments, mean the government simply couldn’t function.

The old schedule in which a newly elected Congress would not meet until the December of the following year and new presidents not be inaugurated until the middle of March is consigned to the dustbin of history. But so, too, should the practice of allowing the president to simply use brief breaks in what is, for all intents and purposes, a nearly continuous congressional session to make appointments that the Senate has already effectively rejected.

Under the ruling in today’s case, so long as either congressional body is in the hands of the party not in control of the White House, recess appointments may be impossible since pro forma sessions will prevent the president from arguing, as Obama did, that the legislature really is not meeting. But, as John Steel Gordon points out, the president will still have a loophole that would allow him to effectively prorogue Congress like an 17th century English monarch.

All this points out the necessity for those who care about the Constitution—be they Republicans or Democrats—to stand up against a lawless presidency intent on one-person rule. Though Democrats may think they will hold the White House for the foreseeable future, they must consider that three years from now they may be faced with a Republican president. That president will, like all of his or her predecessors including Obama, probably suddenly find themselves in love with the idea of an imperial presidency that they disdained when someone of the other party was in power.

If this trend is allowed to continue unchecked and Obama’s predecessors are allowed to build on his precedent, then there is no telling how long the Constitution, as we know it, will survive. Presidents who enforce only the laws they like and use executive orders to make laws or make appointments the Congress has already rejected are little different from kings and queens.

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Proroguing the Congress

The Supreme Court wimped out on the recess appointment power today.

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The Supreme Court wimped out on the recess appointment power today.

It ruled, unanimously, that President Obama had overstepped his powers when he made three recess appointments to the National Labor Relations Board while the Senate was holding pro-forma sessions. In other words, the Senate, not the president, gets to decide when it is in session.

I have not yet read the opinion, which is a long one, but five justices (the four liberal ones and Justice Kennedy), decided to sustain the long-standing practice of presidents making appointments during intra-session recesses (for holidays, etc.) not just inter-session recesses when the Senate has recessed sine die (Latin for “without a day,” i.e. without setting a date to resume). It also ruled that vacancies don’t need to occur during the recess to be filled by the recess appointment power. Again, this is long-standing practice, but it is not what the Constitution says.

The recess appointment clause (Article II, Section 2) says that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, …” and the D.C. Court of Appeals had ruled that it meant what it said: “the recess,” not “a recess,” and vacancies must occur during the recess, not simply exist during the recess. In today’s world, the recess of the Senate is very short. They rarely adjourn before the middle of December and the next session begins, under the 20th Amendment, on January 3. Had the Supreme Court followed that reasoning, and four justices led by Justice Scalia argued forcefully that it should have, the recess appointment power would have been, for all intents and purposes, dead.

Now the long-standing but unconstitutional practice has the imprimatur of the Supreme Court. All sorts of mischief can occur as a result. If the presidency and the two houses of Congress are in the hands of one party, there’s no problem. But if the Senate is in the hands of the other party, it can prevent recess appointments only by staying in pro-forma sessions. If the Senate is in the hands of the president’s party, but the House is not, as is the case presently, then the House can prevent a recess by simply staying in session itself. Neither house can adjourn for more than three days without the agreement of the other house (Article I, Section 5).

But there’s a little noticed clause in the Constitution (Article II, Section 3) that says, “… in Case of Disagreement between them [the two houses], with Respect to the Time of Adjournment, he [the president] may adjourn them to such Time as he shall think proper; …” As far as I know, this power has never been exercised. But here’s a scenario. Obama wants to appoint someone who would have trouble being approved by the Senate, so Harry Reid moves to adjourn the Senate for a week, the House refuses to go along, and the president then adjourns them for two weeks, and appoints his man.

The king of England lost his power to prorogue Parliament in the Glorious Revolution of 1688. The Supreme Court may well have given it back to the president of the United States.

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Ornstein vs. Ornstein on Presidential Recess Appointments

On the New York Times op-ed page, Norman J. Ornstein argues the pending challenge to President Obama’s recess appointments “represents the biggest threat to presidential power in decades”–something he views with alarm. He concedes the recess power was not intended to deal with political disputes between the president and the Senate, but only to allow presidents to appoint officials when it was impractical to summon the Senate back to Washington to confirm them. But he views the recess appointment power as “a modest safety valve to ameliorate the worst abuses of Senate power” when the opposition party controls the Senate.

Seven years ago, with a different president and a different opposition party, Ornstein viewed something else with alarm–presidential recess appointments.

President Bush gave recess appointments to Sam Fox as ambassador to Belgium, Susan Dudley to the Office of Management and Budget, and Andrew Biggs as deputy commissioner of the Social Security Administration. Ornstein viewed the Biggs appointment “an ‘up yours’ gesture to the Senate Finance Committee”; the Dudley appointment “shocking,” because she “probably” would have been approved under normal procedures; and the Fox appointment as one made during the Senate’s Easter and Passover break. Here was his analysis, in an article entitled “Time for Congress to Stand Up to Bush on Recess Appointments”:

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On the New York Times op-ed page, Norman J. Ornstein argues the pending challenge to President Obama’s recess appointments “represents the biggest threat to presidential power in decades”–something he views with alarm. He concedes the recess power was not intended to deal with political disputes between the president and the Senate, but only to allow presidents to appoint officials when it was impractical to summon the Senate back to Washington to confirm them. But he views the recess appointment power as “a modest safety valve to ameliorate the worst abuses of Senate power” when the opposition party controls the Senate.

Seven years ago, with a different president and a different opposition party, Ornstein viewed something else with alarm–presidential recess appointments.

President Bush gave recess appointments to Sam Fox as ambassador to Belgium, Susan Dudley to the Office of Management and Budget, and Andrew Biggs as deputy commissioner of the Social Security Administration. Ornstein viewed the Biggs appointment “an ‘up yours’ gesture to the Senate Finance Committee”; the Dudley appointment “shocking,” because she “probably” would have been approved under normal procedures; and the Fox appointment as one made during the Senate’s Easter and Passover break. Here was his analysis, in an article entitled “Time for Congress to Stand Up to Bush on Recess Appointments”:

Were I Associate Justice Antonin Scalia, an avowed originalist, looking at the plain language of the Constitution, the words of the authors of the document and those addressing the issue during the ratification debates, and the context for the framers at the time, my conclusion would be crystal clear. Back in those days Congress met only for brief periods and was adjourned for many months at a time. There were many occasions when important posts were vacant and nine months might pass before the Senate could convene to confirm the president’s nominees. No one at the time–no one–argued that the recess appointment power was to be used for other, broader purposes, especially in cases where the president was simply trying to make an end run around the Senate. …

In modern times, when Congress is in session virtually year-round, the original rationale for recess appointments has shriveled, leaving very few truly legitimate cases. … In his eight years in the White House, President Ronald Reagan made 243 recess appointments. President George H. W. Bush made 77 in his single term; President Bill Clinton made 140 in two terms. President George W. Bush has made 171 so far. Most of these were relatively minor, but some, including judges, were not. …

The bottom line is that if these [Bush appointments] are not the first recess appointments that skirted the intent of the framers and distorted and abused the Constitution, they are among the most blatant. … Every time a president abuses a power like this one, stretching the circumstances under which he will use recess appointments, it becomes a precedent for his successors, who will use his actions as a base point to stretch the power even further. The more the power is used with impunity, the more the core principles of the separation of powers are eroded. … [I]t is time to put some limits on a presidential abuse of power that has gone way too far.

It would take a constitutional law instructor from Chicago to think up a way to make “in your face” recess appointments in a manner so abusive they dwarfed what Bush did–and perhaps only the New York Times to publish an op-ed suggesting the Supreme Court write an opinion “leaving intact the accepted practices,” written by someone who seven years ago not only didn’t accept them, but realized the plain language of the Constitution doesn’t either.  

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High Drama at the Court Tomorrow

Tomorrow at 10 a.m., the Supreme Court will hear oral arguments on the case of National Labor Relations Board v. Noel Canning. It is a very important case, which is why the court is allowing 90 minutes of oral argument instead of the usual sixty. You can find the legal background here on the indispensable www.scotusblog.com, which will be live-blogging the argument tomorrow morning.

On December 13, 2011, President Obama nominated two people to the National Labor Relations Board, just days before Congress adjourned for the holidays. On January 4, 2012, even before Congress had really opened for business for its second session, which began January 3, he gave them recess appointments to the board. The power to do this is in Article II, Section 2: “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.”

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Tomorrow at 10 a.m., the Supreme Court will hear oral arguments on the case of National Labor Relations Board v. Noel Canning. It is a very important case, which is why the court is allowing 90 minutes of oral argument instead of the usual sixty. You can find the legal background here on the indispensable www.scotusblog.com, which will be live-blogging the argument tomorrow morning.

On December 13, 2011, President Obama nominated two people to the National Labor Relations Board, just days before Congress adjourned for the holidays. On January 4, 2012, even before Congress had really opened for business for its second session, which began January 3, he gave them recess appointments to the board. The power to do this is in Article II, Section 2: “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.”

The original purpose of this provision was to provide a means, at a time when travel was extremely slow and the Senate was likely to be out of session for months at a time, of appointing federal officials temporarily to carry on the business of the government when the Senate was unavailable to confirm the appointment. But presidents had increasingly been using it when the Senate refused to have an up-or-down vote on a nominee, installing the nominee when the Senate had recessed sometimes for only a few days. No one seriously challenged a president’s constitutional right to do so. Indeed, in 2007, the Senate, under Majority Leader Harry Reid, had begun holding pro-forma sessions every couple of days precisely to deny President George W. Bush the power of making recess appointments.

But Obama struck when the Republicans tried to do the same after they took the House in 2010. By having the House not adjourn, the Senate was prevented from doing so as well under Article I, Section 5. Obama simply declared the Senate not to be in real session and made the recess appointments, even though the Senate, far from lollygagging on the confirmation process, had not even had time to have the nominees—nominated less than three weeks earlier and with the holidays intervening—vetted by the FBI or to schedule a committee hearing on them. (Why did the president wait until January 4, and not just appoint them the instant the Senate began holding pro-forma sessions in mid-December? Simple: By waiting until January 4, when the next session of the Senate had officially begun, he secured their positions until the end of 2013 instead of just until the end of 2012.)

When a company named Noel Canning subsequently lost a decision at the NLRB, it sued, claiming the board was illegally constituted. The D.C. Circuit Court agreed a year ago, (see here and here). The three-judge panel ruled, unanimously, that the recess power could only be used during “the recess,” not “a recess,” of the Senate, i.e. only when it had adjourned for the year. By a 2-to-1 vote it ruled that the vacancy had to occur during that recess as well, not earlier. (The dissenting judge sympathized with that judgment, but thought it irrelevant to the case at hand.)

The Supreme Court could duck the issue, saying that this was a political dispute between the two other branches and they would have to sort it out between themselves, overturning the D.C. Circuit’s decision. But to do so would, in effect, gut the Senate’s power to advise and consent to executive branch appointments by allowing the president, not the Senate, to decide when the Senate is in session. Presidents would be free to make recess appointments if the Senate adjourned for lunch. But to uphold the D.C. Circuit ruling in its entirety would sharply curtail the long-standing practice, thus greatly limiting the president’s power in this regard.

This is high constitutional drama.

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Another Nail in the Coffin of the Recess Appointment Power

Last January, the D.C. Circuit Court of Appeals ruled that the president can only make recess appointments when the Senate has adjourned sine die, i.e. without setting a date for returning to session. Once it adjourns this way it is out of session until noon on the following January 3, when the 20th Amendment commands that a new session begin. (The president has the power to summon Congress back into session if necessary.)

This was a great restriction on the recess appointment power of the president, which allows the president to make temporary appointments to posts requiring Senate confirmation “during the Recess of the Senate.” Before that ruling, presidents had often made recess appointments while the Senate was in temporary recess, often of only a few weeks. They did this either because the president thought the post needed to be filled immediately (President Eisenhower gave William Brennan a recess appointment to the Supreme Court in 1956 and he was subsequently confirmed by the Senate) or because of obstruction in the Senate that made an up-or-down vote on an appointment impossible (such as George W. Bush’s recess appointment of John Bolton to the U.N. ambassadorship in 2005).

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Last January, the D.C. Circuit Court of Appeals ruled that the president can only make recess appointments when the Senate has adjourned sine die, i.e. without setting a date for returning to session. Once it adjourns this way it is out of session until noon on the following January 3, when the 20th Amendment commands that a new session begin. (The president has the power to summon Congress back into session if necessary.)

This was a great restriction on the recess appointment power of the president, which allows the president to make temporary appointments to posts requiring Senate confirmation “during the Recess of the Senate.” Before that ruling, presidents had often made recess appointments while the Senate was in temporary recess, often of only a few weeks. They did this either because the president thought the post needed to be filled immediately (President Eisenhower gave William Brennan a recess appointment to the Supreme Court in 1956 and he was subsequently confirmed by the Senate) or because of obstruction in the Senate that made an up-or-down vote on an appointment impossible (such as George W. Bush’s recess appointment of John Bolton to the U.N. ambassadorship in 2005).

But in 2012, President Obama made recess appointments to the board of the National Labor Relations Board when the Senate was in pro forma sessions, meeting every few days for a few minutes. The purpose of these pro forma sessions was precisely to prevent recess appointments. But this caused the D.C. Circuit to take a close look at the recess appointment power and to put great weight on what is usually the most inconsequential word in the English language, the. It ruled that because the Constitution says  “the Recess” not “a Recess,” the president’s power is limited to periods after the final adjournment of the Senate for the year, usually in mid-December.

In April, the White House petitioned the Supreme Court to overturn this ruling. The Court has not yet agreed to take the case, or as they say in SCOTUS-speak, to “grant cert.”

Now, the 3rd Circuit Court of Appeals, which sits in Philadelphia, has ruled in another case, agreeing with the D.C. Circuit case on the scope of the recess appointment power and closely following its reasoning.

If the Supreme Court takes the D.C. Circuit case it would probably take this one too and rule definitively. Or it might not grant cert, which would mean these decisions would stand and the recess appointment power would be, except for a few weeks around Christmas time, effectively dead. And all because the Obama administration overreached and tried to gut the Senate’s power to “advise and consent.” In trying to aggrandize power, it has diminished its power. In retrospect at least, that wasn’t too smart.

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