Month: March 2012

We now come to Attorney General Harry Daugherty, whose 1921 opinion still controls the executive branch’s understanding of what constitutes a “recess” within the meaning of the Recess Appointments Clause. See OLC Opinion, “Lawfulness of Recess Appointments during a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions” 5 (Jan. 6, 2012) (noting that the existence of a recess is determined “[u]nder a framework first articulated by Attorney General Daugherty in 1921, and subsequently reaffirmed and applied by several opinions of the Attorney General and this Office”); id. at 12 (discussing Daugherty’s “seminal opinion”).

The prominence of this opinion is presumably not due to the prestige of its author. No one would describe Harry Daugherty as an “extraordinary lawyer.” At least not in a good way. See L. McCartney, The Teapot Dome Scandal 63 (2008) (describing how Daugherty and a crony entertained President Harding and members of his administration at the H Street house, which they ran “like a combination bordello, gambling den, and speakeasy at a cost of $50,000 a year.”).

But I digress.

Continue reading “Attorney General Daugherty and the “Intra-Session” Recess”

On December 24,1901, during the administration of Teddy Roosevelt, Attorney General Knox issued an opinion responding to the question whether President Roosevelt could fill a vacant office (the appraiser of merchandise in the district of New York) during the “current holiday adjournment” of the Senate. Both houses had adjourned from December 19, 1901 to January 6, 1902 for the Christmas and New Years holidays.

It is important to appreciate the factual context of this question. The Fifty-seventh Congress had been elected in 1900 but, in accordance with normal practice prior to the 20^th Amendment, its first meeting was not until the first Monday of December 1901 (December 2). The taking of a holiday adjournment during the session that began in December had become a matter of routine after the Civil War, with such adjournments typically lasting a maximum of 19 days (there was one exception in 1877, when the adjournment lasted for 26 days). The 17-day adjournment considered by Knox fell squarely within this tradition.

The issue, according to Knox, was “[m]ay the President appoint as in the recess when the Senate had adjourned temporarily to a day certain?” In answering this question in the negative, Knox explained the parliamentary differences between a resolution for “final adjournment of Congress for the session,” on the one hand, and, on the other, “a merely temporary suspension of business from day to day or, when exceeding three days, for such brief periods over holidays as are well recognized and established and as are agreed upon by the joint action of the two Houses.” While Knox acknowledged that the latter type of temporary adjournment might constitute “a recess in the general and ordinary use of that term,” he denied that it could be “the recess” referred to by the Recess Appointments Clause.

Apart from the distinction between “a recess” and “the recess,” Knox grounded his opinion on two structural points. The first was that if temporary adjournments during a session qualified as “recesses” within the meaning of the RAC, then every day-to-day adjournment of the Senate would become a recess during which the president could fill vacant offices. Such a result would be inconsistent with both historic practice and with the purposes of the RAC.

The second point related to the length of the temporary commissions granted under the RAC. Knox saw this as an insuperable barrier to finding the RAC applicable to an “intra-session” recess:

If an adjournment during a session is a recess within the meaning of the clause of the Constitution in question, then the commission of an appointee of the President would extend to the end of the Fifty-seventh Congress, as the Constitution provides that it shall extend to the end of the next session, not the session within which the recess occurs. The only theory to defeat such a conclusion would be that the reassembling of the Senate after each adjournment constitutes a new session, a position wholly untenable in view of the constitutional provision as to adjournments during the session.

23 Op. Atty Gen. at 404 (emphasis in original).

Continue reading “Attorney General Knox and the Multi-Session Recess Appointment”

We now come to the issue that has been much discussed in connection with President Obama’s January 4, 2012 recess appointments: what constitutes a “recess” within the meaning of the Recess Appointments Clause? The RAC, you will recall, provides that “[t]he 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.” (emphasis added).

Recess and Session

Although the Constitution does not define the terms “recess” or “session,” at the time of the framing there would have been little reason to question the meaning of these terms. As discussed in my original post, the Framers would have understood the “session” to consist of the time that Congress (or in some cases the Senate alone) was assembled at the seat of government, while the “recess” was the time between sessions when members of Congress returned to their homes.

The notion of Congress being in “recess” and in “session” simultaneously would have made little sense, sort of like describing someone as being asleep and awake at the same time. The understanding of these terms as mutually exclusive can be seen, for example, in the Act of March 3, 1791, which dealt with the appointment of duties inspectors and provided “if the appointment of inspectors . . . shall not be made during the present session of Congress, the President may, and he is hereby empowered to make such appointments during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” 1 Stat. 199, 200. It is evident from this usage that the “recess” is the period between the “present session” and the “next session.”

The relationship between session and recess was more explicitly stated by Senator Gore when he observed, during the 1814 debate, that “[t]he time of the Senate consists of two periods, viz: their session and their recess.”

There is no reason to believe that Gore thought this statement in any way controversial. Rather he was merely making a foundational observation for his argument that a vacancy must “happen” during the recess for the RAC to apply. Attorney General Wirt, while disagreeing with Gore on the definition of “happen,” shared his understanding of the relationship between the recess and the session. Wirt explained:

The constitution does not look to the moment of the origin of the vacancy, but to the state of things at the point at time at which the President is called on to act. Is the Senate in session? The he must make a nomination to that body. Is it in recess? Then the President must fill the vacancy by a temporary commission.

(emphasis added). Clearly Wirt did not believe that the Senate could be “in session” and “in recess” at the same time.

The Senate Judiciary Committee, in its 1868 report, similarly noted:

 We think the language too clear to admit of reasonable doubt, and that, upon principles of just construction, this period [when the vacancy must “happen”] must have its inceptive point after one session has closed and before another session has begun. It cannot, we think, be disputed that the period of time designated in the [RAC] as “the recess of the Senate,” includes the space beginning with the indivisible point in time which next follows that at which it adjourned, and ending with that which next precedes the moment of the commencement of their next session.

 What the Committee said “cannot be disputed”—namely that the recess consists of the period of time between the adjournment of one session and the commencement of the next—was apparently not disputed by anyone.

Continue reading “A Recess By Any Other Name”

U.S. District Judge Amy Berman Jackson issued an opinion yesterday regarding a challenge to the validity of a rule promulgated by the National Labor Relations Board (NLRB) to require employers to post notices informing workers of their right to organize a union and conduct other activities under the National Labor Relations Act (NLRA). In its opinion on the merits, which can be found here, the court holds:

that the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule – the notice posting provision. But it also holds that the provision of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law.

The articles about this decision stress another aspect of the court’s ruling, however, dealing with a challenge to President Obama’s recess appointments of three members of the NLRB. This ruling is not found in the main opinion, but in a separate memorandum and order (which for unknown reasons is not available on the court’s website).

The court does not address the merits of the challenge to the recess appointments. Instead, it notes that the “rule challenged in this case was already promulgated” when the recess appointments were made and that therefore “the validity of the recess appointments has absolutely no bearing on any of the issues that are ripe for decision in this case.” The validity of the recess appointments could be relevant to a later attempt to enforce the rule in question, but this issue is not ripe: “Neither the Court nor the parties know if and when the General Counsel will initiate enforcement actions pursuant to the rule, and we do not know whether the Board will be comprised of recess appointees at that time.”

Nothing particularly surprising (or interesting) there, but the media has picked up on the court’s comment that it “declines this invitation to take up a political dispute that is not before it.” The description of the matter as a “political dispute” may be cited by the Justice Department in future cases, if for no other reason than to provide mood music for the theme that the courts should stay out of the whole issue. Of course, Judge Jackson’s remark cannot fairly be taken as expressing any kind of a view on whether courts can review the merits of a recess appointments claim in a case where it is properly presented (and, if it could be so read, it would be obiter dicta).

Incidentally, the validity of the NLRB recess appointments is also being challenged in a case currently pending in the U.S. District Court for the Eastern District of New York. See the brief filed by Paul Clement on February 27, 2012 here.