What Senate Legal Counsel’s Silence Says About Noel Canning: Not Much

Writing in Slate last week, Professor Neal Devins, a noted expert on the Constitution and Congress, had several complaints about how Congress presents its legal positions in court. Devins is unhappy that the House, because it operates on a majoritarian basis, may present legal views that are held only by the majority, but he is equally unhappy that the Senate, because it requires bipartisan consensus, may present no legal views at all. And he is particularly unhappy that in the Noel Canning recess appointments case the Supreme Court heard “only from the Senate minority and not from the Senate itself.” As Devins asks plaintively, “why would the Senate’s own lawyer sit on his hands while the minority leader purports to speak for the Senate?”

Why indeed. Let’s begin by reviewing how “the Senate’s own lawyer,” aka the Senate Legal Counsel, operates. As Devins notes, Senate Legal Counsel must, by statute, receive specific authorization before filing any brief on behalf of the Senate. Devins says that “counsel representation of the Senate requires two-thirds support of a leadership group made up of four members of the majority party and three members of the minority party,” but this is incorrect. Appearance as amicus curiae is authorized by Senate resolution, not by the Joint Leadership Group. See 2 U.S.C. § 288b(c). Nothing in the statute requires that such a resolution be bipartisan.

Of course, Senate resolutions, like most other matters, are subject to filibuster. Thus, at least until recently, 41 senators could block consideration of a resolution authorizing the Senate Legal Counsel to file an amicus brief. This is what happened in 1993, when Senate Legal Counsel prepared an amicus brief arguing that a recess appointment by President George H.W. Bush was unconstitutional, but Senate Republicans blocked the resolution that would have allowed the brief to be filed.

Now you may recall that in November the Senate exercised the “nuclear option,” which allows a simple majority to override a filibuster when it chooses. So it may not be technically correct to say that Senate Republicans had the power to block a Senate resolution authorizing Senate Legal Counsel to participate in Noel Canning. They had the right, IMHO, to block such a resolution, but no remedy for the violation of that right if the majority chose not to give it to them.

More importantly, however, there is no evidence of which I am aware to suggest that Senate Legal Counsel was even asked to prepare a brief in Noel Canning. No doubt the Senate Majority Leader could have asked that such a brief be prepared; that’s what happened in the 1993 case. Although the 1993 amicus brief was never filed, due to the Republican opposition, then-Senate Majority Leader George Mitchell entered it into the Congressional Record, noting that it expressed views that “merit the support of the Senate” and should have been filed “in the name of the Senate to defend against an unjustified expansion of the recess appointment power.”

Fast forward to today. Just as the 1993 Republicans did not want to challenge a Republican president’s recess appointment, Devins correctly observes “Senate Democrats seem altogether unwilling to challenge Obama’s efforts to use recess appointments to get his nominees through the Senate.” But being unwilling to challenge a recess appointment is quite different than having a reasoned legal position (or even an unreasoned one) that the appointment is constitutional.

I can’t quite tell if Devins thinks a majority of the Senate would be willing to take a formal legal position in support of the constitutionality of Obama’s recess appointments. But even if this were the case, surely he does not believe it would be a good thing for Senate Legal Counsel to advance this position in court. As Devins notes, Senate Legal Counsel “was created to speak the Senate’s collective voice in disputes with the executive branch.” To argue for expansion of executive power at the Senate’s expense would put Senate Legal Counsel in a rather awkward position, to say the least. It would require Senate Legal Counsel to repudiate both the views expressed in its own 1993 draft brief (under which the Obama recess appointments are clearly unconstitutional) and the practice followed by Senate Majority Leader Harry Reid in 2007-08, when he kept the Senate in pro forma session for the express purpose of preventing recess appointments.

The reason that Senate Legal Counsel did not appear in Noel Canning is that the Senate majority, or at least Majority Leader Reid, did not want the Senate to be involved in a dispute with the administration over the recess appointments. I doubt that Senate norms would allow serious consideration of having Senate Legal Counsel support the administration’s position, even if the Senate majority believed the administration’s position were correct.

In any event, there is no evidence to suggest that the Senate majority actually does believe the administration’s position is correct. Senate Democrats, after all, were just as free as Republicans to file an amicus brief using private counsel. But while every Senate Republican joined the amicus brief authored by Miguel Estrada in opposition to the recess appointments, Senate Democrats did not submit a comparable brief supporting the President. In fact, as far as I know, not a single Senate Democrat joined any amicus brief in favor of the constitutionality of the recess appointments. Given that Senate Democrats had every motivation to support the President’s action as a political matter, this silence seems like a remarkable testament to the lack of Senate support for the action as a constitutional matter.

In short, there is little reason to be concerned, as Devins is, that the Supreme Court will mistake Estrada’s brief for the institutional position of the Senate. That’s because, generally speaking, Estrada’s brief does reflect the institutional position of the Senate. On each of the three issues before the Court, there is a “Senate side” and an “executive side,” and never the twain shall meet. Justice Kagan recognized this when she remarked to the Solicitor General, during the oral argument: “your third argument about pro forma sessions, the history is entirely on the Senate’s side, not on your side.” (emphasis added). On each question the “Senate side” reflects both the position that protects the Senate’s advice and consent power against executive encroachment and the position that the Senate has actually taken as a historical matter (with some caveats, as we have discussed, on the “arise” versus “exist” issue).

No doubt it would have been preferable if Senate Legal Counsel had been permitted to present the “Senate’s side” before the Supreme Court. But in the context of Noel Canning, it’s not that big of a deal.