The Recess Appointment Power Play

Tuesday, September 16, 2014
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The Constitution requires the President to obtain “the Advice and Consent of the Senate” before appointing an “Officer of the United States.” The Constitution also gives the President alone the authority to fill “vacancies that may happen” during the “recess of the Senate” by granting commissions that expire at the end of the next session. Appointments made under the latter, the Recess Appointments Clause, are called recess appointments. The Constitution further provides that neither House shall, without consent of the other, adjourn for more than three days.

Recess appointments are very useful to a President when a vacancy occurs during a long Senate recess or when a nominee faces strong opposition in the Senate. These appointments have been made throughout American history. But until recently, the Supreme Court has never had occasion to interpret the Constitutional provision authorizing such appointments.

President Obama attempted to make three recess appointments to the National Labor Relations Board on January 4, 2012, when the Senate was not in recess. Before the attempted appointments, the Board had only two members. Because it takes three Board members to constitute a quorum, it had lacked authority to function. Soon after the three nominees joined the Board, it found that a soft drink distributor, Noel Canning, had acted unlawfully concerning an employment matter. Canning appealed to the Court of Appeals for the District of Columbia. That Court set aside the Board’s order, finding, among other things, that the three nominees were not lawfully appointed under the Recess Appointments Clause. The case, National Labor Relations Board v. Noel Canning, then moved to the Supreme Court.

When President Obama attempted to make the recess appointments at issue, the Senate was operating pursuant to a unanimous consent agreement providing for a series of brief recesses punctuated by “pro forma” sessions, with no business transacted, every Tuesday and Friday, from December 11, 2011, through January 20, 2012. The Senate passed a bill, a temporary extension to the reduced payroll tax, on December 23, 2011, so it must have been in session, not in recess, during that period. In addition, the House had not consented to a Senate recess. This “pro forma” procedure was crafted by the Democracts when George W. Bush was President to prevent him from making recess appointments during short recesses. President Bush did not attempt to make recess appointments when the “pro forma” sessions were in effect.

The Court was faced with three questions about the attempted recess appointments process:

  • How should the length of a recess be calculated?
  • Does the phrase “recess of the Senate” refer to an inter-session recess (i.e., a break between formal sessions of Congress) or does it also include an intra-session recess, such as a holiday recess?
  • Does the phrase “vacancies that may happen” refer only to vacancies that first come into existence during a recess, or does it also include vacancies that arise prior to a recess but continue to exist during the recess?

The Supreme Court answered these questions on June 26, 2014, with what is possibly the most important separation of powers decision since 1952 when the Court held that President Truman did not have legal authority to seize steel mills to avert a strike during the Korean War emergency. The questions presented in the Noel Canning case were answered thusly:

  • In a 9-0 decision, the Court ruled for Canning, finding that the Senate was not in recess when the attempted appointments to the Board were made and thus the President lacked the authority to make the appointments. Three-day periods between “pro forma” sessions are too short to be a recess for purposes of making recess appointments. The opinion contained this refreshingly clear statement: “The Senate is in session when it says it is.” That was the heart of the case and nothing more needed to be said. Nevertheless, the Court continued and settled two other important issues that were addressed in the Court of Appeals decision.
  • Five Justices, in an opinion written by Justice Breyer for himself, Justice Kennedy, Justice Ginsburg, Justice Sotomayor, and Justice Kagan, held that the words in the Constitution are ambiguous, but that history and practice tell us that “recess of the Senate” refers to both intra-sessions and inter-sessions. Various Presidents have made many recess appointments during short, but longer than three-day, recesses and the Senate did nothing to deny the validity of that practice. Justice Breyer’s opinion gratuitously found that a recess of more than three days but less than ten days is presumptively too short to fall within the Recess Appointments Clause. Nothing in the Constitution says anything about a “three-day” or “ten day” rule concerning recess appointments. This was “judge-made law.” Liberals who tout the “living Constitution” and “invisible Constitution” theories thrive on this type of interpretation. In short, it means that judges can create laws when they deem it necessary or convenient.
  • The same five Justices determined that “vacancies that may happen” refers to vacancies that come into existence during a recess as well as those that arise prior to the recess. Again, history and practice prevailed over the perhaps ambiguous words of the Constitution.

Justice Scalia, in a spirited concurrence (that reads more like a dissent) for himself, the Chief Justice, Justice Thomas, and Justice Alito, interpreted the Constitution literally and disagreed with the majority’s broad reading of the Recess Appointments Clause. He opined that recess appointments can be made only during an inter-session recess and that they can be used only to fill a vacancy that occurs during a recess. It is difficult to disagree with his “plain meaning” reasoning. His reasoning would, however, greatly limit the scope of the recess appointments process. He further stated that the “Court’s embrace of the adverse-possession theory of executive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.”

In this struggle over constitutional interpretation, Justice Breyer carried the day with a theory that practice and history are more important than the text of the Constitution. He and his four colleagues rebutted Justice Scalia’s “adverse possession” criticism by saying that “we interpret the Constitution in light of its text, and ‘our whole experience’ as a Nation.”

This case will undoubtedly serve as a landmark in the manner in which executive power is exercised and how the Constitution is interpreted.

The President lost this case. There was no reason for him to force the issue by attempting to make appointments when the Senate was clearly not in recess. The litigation expenses and uncertainty created by an invalidly created Board were unnecessary. The President’s problem was that he could not get the votes in the Senate to confirm his nominees. There is nothing new about that. Other Presidents have faced the same problem. The answer is to negotiate and work with the opposition to find acceptable nominees. The opposition party, in turn, should give more deference to the President and not play politics just because it can.

It has not always been this way. Consider these confirmation votes for nominees to the Supreme Court: Justice O’Connor (1981, 99-0); Justice Scalia (1986, 98-0). Both nominees were exceptionally well qualified. More recently, as evidenced by Senate voting, ideology and politics have become more important than qualifications: Chief Justice Roberts (2005, 78-22); Justice Alito (2006, 58-42); Justice Sotomayor (2009, 68-31); and Justice Kagan (2010, 63-37). Surely these four prominent jurists were just as qualified as Justices O’Connor and Scalia.

What has changed? Most Senators vote for the perceived ideology of a nominee rather than his or her qualifications. That should change. In addition, Presidents should not abuse the recess appointment process.

On July 30, 2013, well before the Noel Canning case was decided, the Senate approved the President’s three nominees to the Board. With a quorum, the Board set about reviewing decisions made during the nineteen months when it was operating illegally. This is one of the wasteful byproducts of the President’s abuse of executive power.

The President and Senate should spend more time governing and less time trying to win ideological confirmation battles.