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David Rivkin & Lee Casey on the Recess Appointments Case


Posted on January 3rd, by Communications Editor in Updates. No Comments

In this morning’s Wall Street Journal, David B. Rivkin, Jr., and Lee A. Casey preview Noel Canning v. NLRB, a case to be heard in the Supreme Court this month concerning three appointments made by President Obama two years ago while the Senate was in pro forma sessions:

Noel Canning v. NLRB involves several recess appointments President Obama made to the National Labor Relations Board on Jan. 4, 2012. The federal appeals court in Washington, D.C., correctly held that these appointments were unconstitutional both because they filled vacancies when the Senate was not in a true “recess” between Congress’s annual sessions, and because the vacancies had not actually opened up during the purported recess.

While this challenge to presidential power touched off considerable controversy, some political observers say that the recess-appointments issue will fade because Senate Democrats recently did away with the traditional filibuster rule, requiring a “super-majority” of at least 60 senators to allow a contentious nomination to proceed to a vote. This rules change, however, does not moot Noel Canning v. NLRB or the issues it raises. Indeed, limiting filibusters will only grease the wheels of a nomination when a Senate majority approves of a particular nominee.

Even when a president’s own party controls the Senate, there are individuals who for one reason or another cannot get the nod. For example, a nominee unacceptable to his or her home-state senator can be subject to a “hold”—a still-respected senatorial courtesy. Recess appointments are not a proper means of avoiding such roadblocks.

The Constitution’s Framers considered and rejected the notion that the president should be able to staff federal offices without congressional oversight. That’s why the president must have Senate “advice and consent” for the most important appointments. As Alexander Hamilton wrote in Federalist 76, the Senate’s participation “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.”

The Framers believed that vesting the entire appointment authority in the president would have made him too powerful, contrary to their key goal of safeguarding individual liberty by dividing power among the three branches of government.

The need for a presidential power to make recess appointments arose from the assumption that Congress would meet infrequently and that there would be long periods—running to many months—when critical federal offices might remain vacant because the Senate was unavailable to discharge its advice and consent function. Recess appointments are a necessary exception to the normal appointments procedures, but they are an exception.

In more recent years, however, as attitudes in Washington have hardened and become more ideological, presidents of both parties have used recess appointments to put individuals in office who the Senate either had already refused to confirm or would likely turn down if given the chance. Such individuals may serve for up to two years. Although presidential frustration may be understandable, since many nominees never even get a Senate vote, overcoming this roadblock is not the constitutional purpose of recess appointments.

To avoid being in recess, Senate Democrats began to hold pro forma sessions in the last years of the George W. Bush administration. These involved tasking, by unanimous consent, one senator from each party to “convene” the Senate for brief periods in order to “receive” presidential nominations. These pro forma sessions are not fundamentally different from the way the Senate routinely conducts its core legislative business, which also can involve passing bills by unanimous consent with few senators in attendance.

Mr. Obama made the appointments that are being challenged in Noel Canning during one of these pro forma Senate sessions. The president determined that for the purpose of considering his nominees, the Senate was not properly in session because, according to White House Counsel Kathryn Ruemmler, the Senate was “unavailable to fulfill its function.” This, of course, raised another critical constitutional question, since the Constitution vests each congressional house with the power to determine how to operate.

Permitting any president to resolve when the Senate is or is not in session upsets the constitutional balance of power among the executive and legislative branches even further. Most dangerously, a president could potentially claim that the Senate was not “in session” when certain legislation was enacted, and then refuse to enforce it on the grounds that it was invalid.

The specific issue of pro forma Senate sessions was not addressed by the lower court. But given the key constitutional prerogatives involved, the Supreme Court asked lawyers representing Senate Republicans to participate in the oral argument. This signals that the court may determine the extent of the president’s recess appointment power and decide whether the Senate’s power to determine its own rules precludes the president from questioning the constitutionality of the pro forma sessions.

 

The Supreme Court should affirm the court of appeals, limiting recess appointments to filling vacancies actually arising during a true Senate recess, and decisively rejecting the Obama administration’s position that the president can determine when the Senate is or is not in session regardless of the Senate’s own view. This will restore the proper separation of powers between the two political branches that the Framers clearly intended.