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Supreme Court Readies Obama Smackdown

Will say his appointments during Senate recess were unconstitutional

It’s clear from their questioning that the justices have already decided: Despite a practice used hundreds of times beginning with George Washington, a president’s right to make appointments during a Senate recess should be close to zero.

It was the first time the Court has considered the recess appointment clause of the Constitution and the debate largely turned on the difficulty for Congress to assemble when the document was written versus the ease of convening now.

“Congress met and they met continuously”, commented Justice Ginsburg. “And then they went on horseback back home and they were away for 6 months, even 9 months. Today, there's nothing like that”. Congress can make it back to Washington in a day.

That observation pertains to why the Constitution gave the president “the Power to fill up up all Vacancies that may happen during the Recess of the Senate” — the key words of the clause in question. Was this literally referring only to vacancies that came about while the Senate was in recess, in the knowledge that recesses would be long? Or does “may happen” refer to all vacancies that may happen, including those accumulated from before a Senate recess? And what is meant by “recess”?

The arguments at times were in the category of “how many angels can dance on the head of a pin”. “Every justice today was an originalist”, as Marcia Coyle of the National Law Journal put it. The justices parsed the simple clause and the meaning of words such as “happen”, and gave us a good illustration of how our vaunted Constitution often clashes with our vastly different times and leaves us twisted in knots. The ability of the government to function comes last.

cannery row

The case — National Labor Relations Board v. Noel Canning — arose when in January of 2012 an exasperated President Obama, while the Senate was in recess, filled three seats on the Board (the NLRB) that had been kept empty for over a year by Republican filibuster. Except the Senate claimed it was not in recess. To block the president from making those appointments, the Senate — with all its other members scattered to the winds — left one member behind to gavel into being sham sessions every three days. These “pro forma” sessions, lasting only seconds (29 seconds on January 6, 2012, for example), were a pretense to claim that the Senate was in continuous session, even when its chambers sat empty for over a month.

When Noel Canning’s union filed a complaint with the NLRB over a dispute with the company and the NLRB ruled in the union’s favor, the U.S. Chamber of Commerce, which calls itself the world's largest business organization (and has nothing to do with the federal government) intervened to offer Noel Canning its lawyers. A critic of the NLRB that it views as pro-union, it had the Washington state company appeal to the right-leaning court in Washington DC, arguing that the NLRB did not have a quorum owing to what it claimed were illegitimate recess appointments.

The DC appeals court had ruled that “Recess” in the appointments clause refers only to the break between annual sessions of Congress, not to the multiple breaks our industrious Congress takes throughout the year. In this reasoning last summer’s break from the beginning of August to mid-September was not a recess. Justice Breyer offered that around 1970 was “about the first time that you have … an intra-session recess that's longer than an inter-session [i.e., the Constitution’s annual] recess. And so now if we look from 1970 on, that's fairly common”.

Yet, rather than confronting why these long absences are not considered recesses, Justice Kennedy was lost in the weeds of whether every pause would have to be considered a recess: “a lunch break, a one-day break … a 3-day break, a 1-week break, a 1-month break. How do you resolve that problem for us?”, he directed at Donald Verrilli, the Solicitor General arguing for the government. Not one justice ever proposed what we — out here where reality is found — would have proposed: that when everyone has left town, that’s a recess.

And as for the sham sessions, nowhere in the hearing did any of the justices challenge whether “pro forma” sessions can be considered as the Senate truly being in session when the other 99 members have flown. Instead there was fussing over whether business could be conducted during such sessions. What if that solitary sole with the gavel ”got up and asked for unanimous consent to name a post office”, asked Justice Kagan. As he or she would constitute unanimity, “the post office is named”, she said. The justices batting this around seem to be unaware of the Constitution's rule that in the House or the Senate a majority of members is needed to “constitute a Quorum to do Business”.

It certainly seemed that Justice Kagan accepted the Senate’s premise of the validity of pro forma sessions when she said to Verrilli, “if you are going to rely on history” that allowed vacancies occurring when the Senate is in session to pertain to the recess appointments clause, and if intra-session breaks are considered as recesses, “then it seems to me you also have to look to history and the development of an equilibrium with respect to Congress's definition of its own power to determine whether they are in recess or not”. Verrilli shot back:

“There isn't a long history reflecting equilibrium with respect to the use of pro forma sessions in order to restrict the President's ability to use the recess appointment power. There really is no history before 2007 of this daisy chaining of one pro forma session after another”.

Why even bother with pro forma, Kagan might as well have said when she did say, “There's no such thing truly as congressional absence anymore”, referring to the modern day ease with which the Senate can return to Washington as if unaware that the opposite is true: the Senate is habitually absent, off on long breaks.

not activist?

Given the history, it’s a wholesale transformation to say that “may happen” henceforward refers only to vacancies arising during a recess; that the Senate can easily be made available to consider an appointment; and that the recess appointments clause is therefore no longer needed by the president.

Kagan had said “the question of how to define a recess really does belong to the Senate”. Verrilli nailed what is really happening:

“I think the problem with looking at it that way, Justice Kagan, is that that's the end of the recess appointment power. You write it out of the Constitution, if you look at it that way, because all the Senate needs to do is stay in pro forma session”.

Verrilli’s and the Executive’s view is that it is “a matter of raw power that the Senate has the ability to sit on nominations for months and years at a time, but that is 100 miles from what the Framers would have expected”. He cited Hamilton’s belief that doing so “would be a power that was rarely exercised”. Yet in our time this has not been the case, as Kagan acknowledged: “Would you agree that Presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved?” Verrilli contended that “the Executive needed to be fortified against … encroachment by the legislature”, which is why the Constitution gives the appointment power to the president, not the Congress, although “with the Advice and Consent of the Senate”. Chief Justice Roberts immediately rejoinded with “Well, they have an absolute right not to confirm nominees that the President submits”.

Noel (not a typo) Francisco, whose firm represents the U.S. Chamber of Commerce and who argued for Noel Canning, even went so far as to say, “Back at the time of the founding, the senators wanted to trigger that power” — the president’s power of appointment — as if the Senate wrote the Constitution and bestowed this magnanimous gift on the presidency and did so because they didn’t want to be called back from home states by a president who had been left with no power to act.

None of this tilt toward Senate power vs. the Executive troubled the justices; no one disagreed was these assertions, which shows what’s to come. And nowhere throughout the proceedings was it ever suggested by the justices that the president should have the power to act when the Senate — potentially for years during a president’s tenure — fail to perform its constitutionally stipulated roll of offering that “Advice and Consent” rather than entirely blocking consideration of a candidate by filibuster. Nowhere was the Senate chastised in the present case for its intractably blocking the NLRB appointments that caused the case before them.

Ultimately, the only thread left by which the recess appointment clause hangs — given the nature of the justices’ challenges — is whether what was referred to as the “equilibrium” of the long and relatively contention-free history of its use is viewed as the precedent that it ought to be. In recent time President Clinton made 139 such appointments, for example. George W. Bush made 171. Far from abusing the power, Barack Obama has made only 32.

In the wake of that history, how odd if the justices uniquely deprive Obama of the right? And how will they justify writing the recess appointments clause out of the Constitution?

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