Recess is Over?

by Andrew Rudalevige on January 27, 2013 · 18 comments

in Bureaucracy,Judicial,Presidency

You will recall that in January 2012, President Obama named Richard Cordray to head the Consumer Financial Protection Bureau and three new members to the National Labor Relations Board, all by recess appointment. The catch was that the Senate was not in recess — or at least said it wasn’t. Since 2007, originally in response to George W. Bush’s aggressive use of recess appointments (he made 170+ ) and then via Republican pressure after Obama took office, the Senate has held brief pro forma sessions even during periods of legislative inactivity, purportedly preventing Senate recesses of sufficient duration to allow for recess appointments.

The Obama administration argued that since the Senate did not – perhaps even could not (there is some dispute here) – conduct regular business during these sorts of sessions, it was not available to perform its advise and consent function. Thus it was de facto in recess and such appointments could in fact be made.  Sarah Binder’s post from the time detailing this is here; Nolan McCarty’s take is here. Much useful background may also be found in this CRS report on the subject.

Other than a predictable slate of kudos and denunciations, correlated rather heavily with partisan preference, the Senate made no formal response back in January 2012. But those regulated by the CFPB and NLRB did. A series of court cases ensued challenging the legality of the actions taken by the appointees appointed in this manner. So, pro forma meets de facto meets the D.C. Circuit Court of Appeals — which late last week ruled against the NLRB appointments.The full opinion is here (those wishing to cut to the recess appointment chase may jump to the bottom of p. 15.)

Actually the court went much farther than merely holding that the Obama appointments override the Senate’s prerogative to decide for itself when it is in recess. Indeed, the opinion turns on an allegedly emphatic difference between the Senate being in recess, and “the Recess of the Senate” envisioned in Article II, Section 2:3. After reviewing the grammatical distinction between “a” and “the,” the court comes to the (or at least an) “inescapable conclusion that the Framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings.” This, the opinion goes on, “is not an insignificant distinction. In the end it makes all the difference.”

Indeed it does, at least to the court’s logic, and potentially to the recess appointment power. According to the ruling, “The Recess” must be the period between Senate sessions — thus, during the interim between (say) the 110th Congress, 1st session, and the 110th Congress, 2nd session, provided that the Senate has adjourned, sine die, in between.  Despite the fact that intrasession appointments have occurred since 1867, and with some regularity in the postwar era, the court’s decision declares that practice off limits.

Further, the court goes on, only vacancies that actually come into being during a Senate recess (sorry, during “The Recess”) can be filled in this way. A vacancy that has existed since before said Recess doesn’t count. This, too, has some grammatical support within Article II — which holds that the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate” — but goes against what had seemed to be well-settled practice. To quote another CRS report: “Although this question was a source of controversy in the early 19th century, Attorneys General and courts have now long supported the first, broader interpretation of the phrase.” That is, they have held that ‘may happen’ should be read ‘may happen to exist.’

I tend to agree that the Obama administration overstepped. In its memo a year ago, the DOJ’s Office of Legal Counsel concluded that “the President… has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”  As the court responded, “This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.” Was the president acting rationally, in the face of opposition obstructionism? Certainly. That doesn’t mean his actions were legal, or should be applauded.

On the other hand, to retroactively impose a definition of “recess” that goes against 145 years of practice is itself overreach. While the DC Circuit’s opinion is drenched in the judiciary’s favorite self-congratulatory perfume – Eau de Marbury v Madison – its logic is perhaps not self-evident. Note that there is an 11th Circuit Court of Appeals ruling from 2004 (when Democrats in the Senate challenged a judicial recess appointment made by President Bush) that upheld the appointment (in quite different circumstances, when the Senate was indubitably in recess, albeit not between sessions.)  That decision held explicitly that “the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause” (p. 8).  CRS notes more broadly that while there is more controversy over intrasession recesses than those between sessions, “through interpretation and practice, a ‘Recess’ for purposes of the Recess Appointments Clause encompasses both the inter- and intrasession recesses of the Congress.”  (The DC Circuit dismisses out of hand the 11th Circuit’s reasoning, even as it professes “respect for our sister circuit” (see pp. 26ff).)  One practical objection to the present holding would be to wipe out not just administrative decisions made by recess appointees over time (since 1867?) but, presumably, to vacate decisions made by judges appointed this manner.

In any case, even things that are self-evident are not always self-executing (to borrow a phrase) — and it is worth remembering that constitutional ambiguities between the branches are normally worked out in practice. Even when the Supreme Court declared that legislative vetoes were unconstitutional, in the 1983 Chadha case, Congress and the president continued to put them into law — because they were too useful a powersharing device to set aside.  Likewise one imagines that the last word – and the last recess appointment – is some ways off.

{ 18 comments }

RobC January 27, 2013 at 5:37 pm

Addressing the issue of whether a recess appointment may include vacancies that did not happen during the recess, Professor Rudalevige writes, “[The Court of Appeals held that a] vacancy that has existed since before said Recess doesn’t count. This, too, has some grammatical support within Article II —which holds that the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate”—but goes against what had seemed to be well-settled practice.”

“Has some grammatical support” seems like a pretty mild way of expressing that what the Court of Appeals held on this issue is exactly what the language of the Constitution says. Now, perhaps 145 years of practice should override the plain meaning of the provision, or perhaps there are emanations of penumbras of other provisions that create a power that is seemingly not granted by the Recess Appointment provision. But let’s not pretend that there’s merely “some grammatical support” for the holding on this issue. Those who wish to expand the Recess Appointment power beyond the clear language of Article II should have the intellectual and legal burden of explaining why it’s appropriate to deviate from that language.

Consumatopia January 28, 2013 at 1:24 pm

This is wrong–the text is ambiguous and doesn’t point in one direction or the other. “during the Recess of the Senate” could mean when the vacancies happen, as you claim. It could just as easily determine when the president has the power to fill vacancies that occur whenever. This ambiguity exists because there are multiple ways to parse the sentence (what does “during” apply to?) and because “Vacancies that may happen” is linguistically awkard (a vacancy isn’t an instantaneous event, it’s an event with duration, that starts at some time and ends at some later time).

What I’m a bit puzzled by is the idea that “during the Recess of the Senate” could apply to both when the vacancy appears and when the president can appoint them.

Nameless January 28, 2013 at 5:46 pm

The thing is, framers’ intentions behind crafting the “recess clause” are quite obvious and fully in line with the interpretation by the Court of Appeals.

Back when the Constitution was drafted, at the end of each session of the Congress, it would go into recess and all congressmen would leave town for several months. Travel was slow, it could take a congressman up to 2 weeks to travel from his home town to DC or back, and long continuous recesses were natural.

Framers had to provide for vacancies that arose during these periods of time. Normally, it would be the job of the Congress to fill all vacancies, but, if one arose when congressmen weren’t in town (and possibly weren’t expected to be for a long time), the President was given an opportunity to keep things running smoothly in their absence.

It was obviously never the intention of the framers to let the President appoint anyone he wants to any position that is available, just by waiting till the Congress left town. In the words of the Court of Appeals ruling, that would “eviscerate the Constitution’s separation of powers.”

The Court of Appeals cited a 1799 letter from Hamilton to McHenry, which both supports this point and indicates the common use of the word “happen” at the time: “the President cannot fill a vacancy which happens during a session of the Senate.” It also mentioned Federalist 67 (Hamilton, 1788):

” The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

Nameless January 28, 2013 at 7:11 pm

But I must say that I do find it funny how the 2013 DC ruling and the 2004 11th Circuit ruling meticulously argue diametrically opposing points, even though both courts were led by judges (Sentelle and Edmondson) appointed by the same president (Reagan) less than a year apart.

I can’t help but wonder if this has to do with the fact that the 2004 ruling was in favor of a Republican president, and the 2013 ruling was against a Democrat.

The 2013 ruling was made unanimously by 3 Republican-appointed judges. In the 2004 ruling, there were two dissents entered, both by Clinton appointees.

Hoyapaul January 28, 2013 at 2:35 am

RobC –

You argue that “145 years of practice” should not override the “plain meaning” of the constitutional provision at issue here, but there are a couple problems with that.

First, it is far from clear that the meaning of this provision is “plain.” There is no reason why the phrase “the Recess” ought to apply only to the break at the end of the Senate’s session. After all, people use “the” all the time to refer generically to things (e.g. “the apple is a tasty fruit”). If the Framers wanted this phrase to refer only to a very specific recess at the end of a session, then why wouldn’t they have made this explicit?

More importantly, long-standing practice is hardly irrelevant to constitutional interpretation. Courts should be hesitant to overturn such practices for pragmatic reasons. In this case, the pragmatic concern is that if intrasession recesses are unconstitutional, does that mean that every decision ever made by an official (including judges) should be vacated? If not, why not? In such situations, the courts are better off letting the interbranch dispute be resolved by the branches actually involved in the dispute. Congress has plenty of ways to try and force the president to stop these sorts of appointments if they don’t like it (e.g. failing to pass legislation important to the president; refusing to confirm other appointees until the president stops this practice).

And note that the question of whether these sorts of intrasession appointments are constitutional or not is a separate question from whether the courts should intervene. After all, the courts’ own power here rests upon pretty shaky textual grounds. Sure, the courts have some 200-plus years of practice since Marbury v. Madison on their side, but Article III says nothing about the courts making constitutional decisions at all. If years of historical practice is worth nothing, as you argue, then the D.C. Circuit had no constitutional power to rule on this case.

RobC January 28, 2013 at 2:53 am

Paul, contrary to your assertion, I didn’t say that 145 years of practice should not override the plain meaning of the Recess Appointment clause. What I said was, “Now, perhaps 145 years of practice should override the plain meaning of the provision.”

And I didn’t address the question of whether the Recess Appointment clause should apply only to the intersession recess.

All I addressed was that the Recess Appointment clause, by its plain language, limits the application of the clause to vacancies that happen during the recess. The Court of Appeals’ holding on that point doesn’t merely have “some grammatical support within Article II.” It is as straightforward a reading of the words of a constitutional provision as one could hope to find. Let’s have the intellectual honesty to acknowledge that, and make our best arguments as to why some other considerations (145 years of practice, emanations of penumbras, the Living Constitution) should override the plain language, or why the courts should treat the issue as non-justiciable.

Pat January 28, 2013 at 11:07 am

Does anyone have a list of appointees from the last 5 Administrations who would be illegal under the new interpretation?

Bryan January 28, 2013 at 2:45 pm

Pardon my ignorance – as I’m not in any way familiar with judicial rulings – but would this decision apply retroactively to previous appointments?

Nameless January 28, 2013 at 5:49 pm

It would provide grounds for anyone to challenge retroactively any action of any appointee. So yes, it would potentially open a big can of worms.

John January 28, 2013 at 11:32 am

It’s hard for me to see how decisions like this one are particularly similar to Marbury v. Madison. The key fact about Marbury is that Marshall ruled the way Jefferson wanted him to – by ruling the way he did, he avoided a dispute with the executive.

Andrew Rudalevige January 28, 2013 at 11:48 pm

John – you are of course right about Marshall’s clever inter-institutional politics in Marbury. But the reference here is to the Marbury claim that “it is emphatically the province and duty of the judicial department to say what the law is” — quoted not once but twice in the DC Circuit’s decision. Marshall got away with this precisely because, as you say, he used judicial review to avoid a dispute with Jefferson. (Recall that judicial review is itself not actually in the Constitution.) But I fear the line is too often utilized when judges want to pat themselves on the back for being brave and visionary (‘only we see the truth after all this time, and are courageous enough to say what the law is.’) In my view Congress should be the one to step up – as it did, actually, at different times in the 1980s and 1990s – to deal with illegitimate recess appointments.

John G January 29, 2013 at 1:26 pm

Scholars surrounding Neustadt (self executing) look at persuasion and the ability to gain power (i.e.,Schlesinger’s “Imperial Presidency” is an exemplar) –as the Founders foresaw. The judicial branch contributes to checks and balances by regulating the constant attempts of both the congress and the executive branch to change the status quo and, indeed, expand their reach of power.

For example, Truman could not nationalize the steel mills, conversely, IKE enforced Brown v. Board of Education. As society and the polity develop, that inherent change allows for more power struggles. But I don’t see how leaving these vacancies open is pragmatic or helpful to the American republic.

Perhaps some rational choice would be helpful. What is (1) the equilibrium of the judicial system by not filling these vacancies against the president filling these vacancies during (2) “The” recess, and (3) all recesses whereas the Congress has no ability to call quorum. Which of the three paths is the rational choice for the American public–or the median voter? Which path is the rational choice for the minority party in office? Why?

RobC January 29, 2013 at 2:17 pm

Discerning what is the most rational choice is all very fine, but we have the impediment of operating under a Constitution and a set of laws. Merely because the President inserts somebody’s backside into a chair at an agency or commission or court doesn’t mean that person is in fact an agency head or commissioner or judge or that his or her actions are clothed with the force of law. To believe otherwise is quite simply an affront to constitutional government; that’s the way juntas operate.

Happily, the Constitution does provide a remedy if the confirmation process is so badly flawed as to be unworkable. You can find it in Article V.

Nameless January 30, 2013 at 10:54 am

I’m not sure what’s your point here.

Ultimately, the process is flawed, because the framers never foresaw the amount of dysfunction we saw in the Congress for the last ~3 years (ever since Scott Brown took his Senate seat.) I don’t think they even considered a possibility that the Senate could go into the recess (or “a” recess) without filling all vacancies. Much less the possibility, like today, that a vacancy could arise in August 2010 and remain unfilled by the Senate till it went into a de facto recess in December 2011. The whole point of the recess appointments clause was to ensure that vacancies are filled promptly, without even a couple months of delay.

When the Senate can’t agree with itself even to fill vacancies in a timely fashion, how exactly does it help to have a remedy that requires a 2/3 vote of the Senate, a 2/3 vote of the House, and support of 38 state legislatures?

John G January 30, 2013 at 8:14 pm

just to be a little extreme; Lincoln denied habeas corpus and to his detractors who said he was going against the constitution, he said something like: without a union–what use is the constitution?

the point of the rational choice exercise is to gather some data on just how crippling the Senate’s inaction is and to compare that data to what would happen if the Senate did its constitutional job–on time.

I’m all for filling vacancies that the Senate won’t vote on–seems like the Senate is trying to unconstitutionally create an endless pocket veto…which simply isn’t in the constitution. Really, what good are the vacancies–if you can’t fill them? And how efficient can government be–if the Senate keeps the seats vacant?

Like, what if I had a photography company–and I was allowed to appoint a printer; but the printer’s mother never “approved” and so I never had a printer. I guess I’d go out of business since I never printed anything for sale, since my printer’s mother never allowed the printer to work.

RobC January 30, 2013 at 9:21 pm

I guess ultimately it’s about why kind of system we want to be governed by. If the President decides that the Congress is being too obstreperous, should he declare emergency powers and act unilaterally? And if he does, should the courts go along and enforce his orders, and those of the subordinates he installs in office? That’s one solution to the problem of Congress not acting on his nominations in what he considers a timely manner. But I’d respectfully suggest it’s not a very sound solution. Hard as it is to believe, the Republic can still function even if there’s not a quorum on the National Labor Relations Board and even if there’s no head of the Consumer Financial Protection Bureau.

Perhaps the President could have achieved confirmation if he’d negotiated who he was going to nominate with the members of the opposing party. Perhaps not; perhaps they’d have blocked any nomination. That would leave the NLRB and the CRPB powerless. When you think about it, that’s similar to the way the President can choose to suspend enforcement of the immigration laws for those who came to this country illegally as minors. It’s one branch of government thwarting another. The President can do it by failing to enforce certain laws (a subject that hasn’t raised many hackles with respect to the President’s selective enforcement of immigration laws but could cause political scientists agita at some time in the future if the laws at issue are the Affordable Care Act or certain gun-control laws). The Congress can do it by changing laws or by defunding programs or by failing to confirm nominees required to issue or enforce regulations.

These conflicts are inherent in a system of checks and balances. No doubt it can be frustrating for the President and for those who would like the President to be able to have his way without the meddlesome Congress and without courts that hew to the actual words of the Constitution. To all such folks, I recommend deep breaths.

Nameless January 31, 2013 at 2:42 am

If it is checks and balances that you want, the Congress has a much better way of achieving this result. It does not like NLRB or CFPB, fine, it can simply go ahead and close them! Wait, you say that it won’t close them, because the existence of both agencies is, in fact, supported by the majority of Senators? Then we seem to have a problem, because the real issue is that an arbitrary rule (requiring a 3/5′ths vote on any substantial action by the Senate), which is not rooted in the Constitution in any way, somehow results in congressional paralysis, allowing the minority to block any efforts of the majority to keep things running as envisioned by the framers of the Constitution.

John G February 1, 2013 at 11:04 am

Is there a long-term pattern here?

The filibuster is becoming a constant institutional norm, replacing the simple majority rule. Empirically, the minority openly admits to a “blocking agenda” (especially in the House) rather than a collaborative agenda. Have you seen McConnell filibustering his own bill (see 1 below)?

Now, to some degree, when we look at the trends in Senate history, what previous Congress demonstrated more contention? Which Congress should we compare this Senate [and House] to–partisanship wise? Don’t we see some pre-caning going on here? (see 2). Should we expect Congress to get worse as partisanship is at an all time high?

So if Congress is doing nothing on approving appointments–and is a terrible Congress; then I imagine that the President (considering his own approval rating) should do something to fill the seats, to faithfully execute the Office of the President.

Part of checks and balances isn’t simply to restrain power–but to also take power when one of the branches is faltering. And we have good evidence that Congress is faltering.

1. https://www.youtube.com/watch?v=dGo8E3shaIQ
2. http://www.senate.gov/artandhistory/history/minute/The_Caning_of_Senator_Charles_Sumner.htm

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