The day after the Noel Canning case involving the Recess Appointments Clause came down, the Federalist Society held a teleforum conference on the issue. I was on a panel with Noel Canning’s attorney in the Supreme Court, Noel Francisco, as well as Professor Kristin Hickman from Minnesota Law School. Kristin raised an interesting point. She argued that one of the principal motivations for Justice Breyer’s majority decision relying on practice to allow a broad recess appointment power was a strong reluctance for the Supreme Court to hold that hundreds of recess appointments by Presidents had been unconstitutional. I am not sure that…
While people who favor the original meaning of the Recess Appointments Clause were disappointed by the majority decision in Noel Canning, some people argue that at least the Court’s holding as to pro forma sessions puts a significant check on executive power. According to this view, the Senate can simply hold pro forma sessions every 3 days to prevent the President from making a recess appointment. That would prevent recess appointments, because the Supreme Court held that a recess of more than 3 days and presumptively more than 10 days is required to make a recess appointment.
Moreover, these people argue that even if the party opposing the President only controls the House and not control the Senate, it can still block recess appointments. Since neither house can adjourn for more than 3 days without the consent of the other house, the House of Representatives can force the Senate to meet every 3 days (by the House refusing to adjourn for more than 3 days). The party opposing the President can therefore prevent recess appointments so long as it controls one house. Thus, even if the Supreme Court’s holding regarding pro forma sessions conflicted with the original meaning, it at least constrains the Presidents otherwise excessive recess appointment power.
While there is something to be said for this view, it is by no means clear that the pro forma sessions will work to constrain the President. There are two issues here: how many houses the party opposing the President needs to control and whether a single Senator from the President’s party can defeat the pro forma session procedure.
In my first post, I noted that I thought Justice Breyer’s decision was wrong on all three grounds based on the original meaning of the Constitution. This may surprise some people who believe that the third ground of the Court’s decision – that the pro forma sessions were real sessions and therefore the recesses were not long enough to justify a recess appointment – was a favorable rebuke of the Obama administration. But in my view, the majority’s third ground is probably not in accord with the original meaning.
I have come to this position over time. But the final straw was Justice Breyer’s opinion, which ironically convinced me that the pro forma sessions were not real ones (ironic since he was arguing the opposite position). It is significant that Justice Scalia and the other concurring justices did not join this part of the opinion, suggesting that they may agree with my doubts about this conclusion.
A pro forma session involves two or three Senators meeting for a minute or two. Justice Breyer argues that the Senate is entitled to deference as to its conclusion that the Senate is in session and therefore the Court and the President must treat these sessions as real ones.
But this is mistaken. The Constitution establishes that a majority of the Senators constitutes a quorum. Therefore, one or two Senators cannot operate the Senate. If the Senate was in a recess, a meeting of two Senators would not end the recess. The Senate as a whole would lack capacity to conduct business.
Conservatives have been celebrating Noel Canning, the recent Supreme Court decision on recess appointments, because President Obama lost 9-0. But in reality the case was a loss both for liberty and the rule of law. While the result was unanimous, the reasoning in Justice Stephen Breyer’s five-person majority dramatically diverged from Justice Antonin Scalia’s four-person concurrence. And it is the reasoning, not the result, that may shape our constitutional future. Justice Breyer’s majority opinion elevates practices of the President and Congress over the original meaning of the Constitution. Adoption of Breyer’s principle of constitutional interpretation threatens our liberty.
The Recess Appointment Clause provides: “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.” Breyer’s majority opinion permitted the President to make recess appointments during intrasession recesses, not only at the end of the congressional session, and to fill vacancies that happen at any time, not only vacancies that happen during recesses. Those holdings provide the President with potentially substantial recess appointments power, assuming that the Senate in fact takes intrasession recesses.
This year’s Federalist Society convention had it all. Prospective presidential candidates. Potential Supreme Court nominees. Lively debates on issues ranging from the proper role of federalism to the impact of the Obama Administration’s regulatory agenda. Throughout the convention, many speakers, of all ideological stripes, agreed that the Obama Administration has taken a very expansive view of executive and agency power.
The Scotus Blog is having a symposium on the Recess Appointments Clause and the Noel Canning case. The symposium will last until Wednesday of this week.
My own entry – “The originalist and non-originalist cases for following the original meaning of the Recess Appointments Clause” — is up.
Here are a couple of excerpts:
The issues raised by National Labor Relations Board v. Noel Canning, which provides the Supreme Court with its first opportunity to interpret the Recess Appointments Clause, are easy to misinterpret. Many people view the case as political or partisan. After all, the recess appointments involved NLRB officials who decide issues that generate much political controversy. The D.C. Circuit decision was written from an originalist perspective by a conservative judge and joined by two Republican appointees. A Third Circuit decision, which also found the NLRB recess appointments unconstitutional on originalist grounds, was again supported by Republican appointees, with a dissent by a Democratic appointee.
But it is a serious and shortsighted mistake to view the issues at stake in partisan terms. The easiest way to see this is to go back eight years, when President George Bush was recess-appointing judges who were being filibustered by the Democratic Senate minority. At that time, a broad recess appointment power was attacked by liberals, including a court challenge joined by liberal icon Senator Ted Kennedy. The resulting Eleventh Circuit decision allowing a broad recess appointment in Evans v. Stephens was written by a Republican appointee, with a strong dissent advocating a narrow interpretation of the Clause on originalist grounds written by liberal judge Rosemary Barkett.
While the recess appointments power can obviously be partisan in the short run, in the long run it concerns nonpartisan matters about the allocation of constitutional authority and checks and balances. I have always viewed the Clause in these terms. When I wrote my 2005 article on the Original Meaning of the Recess Appointments Clause, my position led me to contest the Bush recess appointments and to agree with Ted Kennedy – not a familiar position for me. If we step back from today’s short-run politics, there are strong arguments based on the original meaning, on modern circumstances, and on maintaining limits on presidential power for following a narrow interpretation of the Recess Appointments Clause.
As many readers know, the Solicitor General’s Office has sought cert in the Noel Canning Recess Appointments case. Solicitor General briefs are supposed to be the best of the best, but in reviewing the brief I have found a problem: At the least, the SG’s Office has made an assertion without adequate support and in my view has probably made a misstatement about the history. This post will be getting into some detail, but it is necessary to correct the record.
One of the issues in the Recess Appointments case is whether the President may recess appoint someone to an office that was vacant when the Senate was in session. While I believe the text, structure, and history strongly indicate that he may not, the SG argues the opposite.
While the SG brief repeats many of the old arguments, it does present some new evidence. The most important originalist evidence that the SG offers is the claim that in November 1793, George Washington “recess appointed Robert Scot to be the first Engraver of the Mint, a position that was created by a statute enacted in April 1792. The vacancy arose when the statute was first passed, and was then filled during a later recess after at least one intervening session.” (P. 25) If this claim withstood scrutiny, it would constitute the earliest example of a recess appointment made to an office that had been vacant during the session. But it doesn’t.
Here is a very plausible explanation as to how the recess appointment of Robert Scot was not to a position that was vacant during the session. The statute establishing the mint provided for various officers, including both the Chief Coiner and the Engraver. The statute specifically stated, however, that “it shall be lawful for the functions and duties of Chief Coiner and Engraver to be performed by one person.” 1 Stat. 247. It turns out that Henry Voigt was appointed as the Chief Coiner (through a presidential nomination and consent of the Senate) in January 1793 (during the session of Congress).
Since there was no person serving as Engraver, it is reasonable to assume that Voigt performed both jobs. At a certain point, however, one may assume that President Washington determined that it made sense to fill the position with a separate person. If Washington made that decision during the recess of that year, then the office would have become vacant at the time. Thus, the recess appointment of Scott as Engraver would have occurred for an office that became vacant during the session.