Author: Michael Stern

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A Recess By Any Other Name

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”

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We Have Another Tie!

This time in Wisconsin, where a Republican state senator (facing a recall election in June) has resigned, leaving the Senate split at 16-16.

Unlike Virginia, Wisconsin has no constitutional provision providing for the lieutenant governor (or anyone else) to break ties.  Nor, apparently, is there any statute that says what happens in this situation.

According to NCSL’s website, this leaves two options: (1) a negotiated agreement between the parties and (2) a coin toss.

A coin toss sounds good, but would they be able to agree on which coin to use?

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Senator Stevens and the Strange Evolution of Speech or Debate

Yesterday was the release date for Henry Schuelke’s report on misconduct in the prosecution of the late Senator Ted Stevens. The report, which I have only skimmed, is available here.  In addition, Judge Sullivan’s opinion ordering the public release of the report may be read here. Judge Sullivan summarizes the case for release by noting:

Mr. Schuelke’s Report chronicles significant prosecutorial misconduct in a highly publicized investigation and prosecution brought by the Public Integrity Section against an incumbent United States Senator. The government’s ill-gotten verdict in the case not only cost that public official his bid for re-election, the results of that election tipped the balance of power in the United States Senate.

One might think that the Speech or Debate Clause would have a role in preventing this type of prosecution, but, for reasons I discussed at the time, it was of little use to Senator Stevens.

On the other hand, in another Speech or Debate Clause case, currently pending in the same court, the defendant has proved to be much more fortunate. Howard v. Office of the Chief Administrative Officer is an employment discrimination case brought by a former employee of the CAO’s office, who alleged that she was discriminated against based on race and retaliated against for engaging in activity protected under the Congressional Accountability Act.

The question in the employment discrimination case is simply whether Howard was fired for not doing her job, as the CAO contends, or for the illegal reasons alleged by the employee. But because Howard’s job involved “legislative activities” (she prepared budget analyses that the CAO would submit to the Appropriations Committee for use in preparing the legislative appropriations bill), Judge Kennedy held that a court could not inquire into the reasons for her termination without violating the Speech or Debate Clause. Although the court acknowledged Howard’s somewhat tangential relationship to the legislative process, it found “there is not a sufficient basis in precedent to conclude that a task is non-legislative merely because it is performed by staff who are several steps removed from the Members themselves.”

If the purpose of Speech or Debate is to protect “the independence of the legislative branch from intimidation and interference,” as Judge Kennedy wrote, one would think it much more relevant to the Stevens prosecution than to the Howard case. But the courts have struggled to draw the line between “legislative activities” and “non-legislative activities” without giving much thought, it would seem, to whether the results make any sense.

As the court remarked in Jewish War Veterans, Inc. v. Gates, 506 F.Supp.2d 30, 57 (D.D.C. 2007), “[i]s hard enough to draw the crucial distinction between legislative and non-legislative acts, despite the existence of four decades of Supreme Court and D.C. Circuit case law to provide guidance.” True enough, though perhaps more true if “despite” were replaced by “due to.”

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What’s Happening? Rerunning the Wirt-Rappaport Debate on the Recess Appointments Clause

Attorney General Wirt’s interpretation of the Recess Appointments Clause, under which the President may fill vacancies that “happen to exist” during the recess of the Senate, has been followed by the executive branch since Wirt issued his opinion in 1823. A few years ago, Professor Michael Rappaport challenged Wirt’s interpretation, arguing that it was so obviously inconsistent with the original meaning of the RAC that it should be rejected despite its long historical provenance. Rappaport contends that the RAC only applies to vacancies that actually “happen,” i.e., arise or occur, during the recess of the Senate. Vacancies that arise while the Senate is in session cannot be filled under the RAC, even if the offices remain vacant when the Senate recesses.

Everyone, including Wirt, acknowledges that Rappaport’s interpretation of the RAC represents the more natural reading of the text. Rappaport argues, in fact, that if the RAC is read to give the President the power to fill all vacancies that exist during a recess, the words “that may happen” in the RAC become mere surplusage. This textual argument also convinced Judge Barkett, who concluded that “the plain meaning of the [RAC] directly, expressly and unambiguously requires that before a vacancy can be filled through the recess appointment power, that vacancy must have occurred during a Senate recess.” Evans v. Stephens, 387 F.3d 1220, 1229 (11th Cir. 2004) (en banc) (Barkett, J., dissenting).

Yet while the Rappaport theory is strongly grounded in the text of the RAC, it faces more difficulty when measured against the three purposes of the Clause. With regard to the purpose of keeping important offices filled, it compares poorly with the Wirt interpretation. As Wirt fairly pointed out, there is a reasonable possibility that some vacancies will arise during the session of the Senate in circumstances where it would be difficult or impossible to fill them with advice and consent. Rappaport’s position would mean that those offices would remain unfilled until the Senate’s return.

Continue reading “What’s Happening? Rerunning the Wirt-Rappaport Debate on the Recess Appointments Clause”

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Judge Jackson’s Non-decision on Recess Appointments

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.

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The Purposes of the Recess Appointments Clause

At first blush, the purpose of the Recess Appointments Clause seems rather obvious- it enables the President to fill offices temporarily when the Senate is not available to provide its advice and consent with regard to a permanent appointment. As Professor Michael Herz observes, the RAC’s purpose seems “sensible, straightforward, and unquestioned.” Yet it may be beneficial to spell out its purposes a little more precisely.

One purpose of the RAC is clearly to keep important offices filled when the public good so requires. As Hamilton wrote in Federalist No. 67, “as vacancies might happen in [the Senate’s] recess, which it might be necessary for the public service to fill without delay, [the RAC] is evidently intently 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.’”

This purpose is the one stressed by those who urge a broad reading of the RAC. It is worth noting, however, that the Framers did not give the President the power to fill any vacancy when there was an urgent need. The President’s power is limited both as to which vacancies he may fill (ie, those that “may happen during the recess of the Senate”) and as to the duration of the commission that he grants (ie, until the expiration of the Senate’s “next session”). The Framers could have given the President the power to fill all vacancies until such time as a permanent appointment was made, but they did not do so.

A second purpose of the RAC appears to be to provide a clear and objective rule as to when the President may fill vacancies. The President might have been given the power to fill vacancies only where “necessary,” or on “extraordinary occasions,” or “where required by the public good.” But the President’s power is not qualified by any such discretionary judgments; instead, it is bounded by objective factors (or factors that would have seemed objective from the Framers’ perspective). In other words, as Professor Dworkin might put it, the RAC provides a rule, rather than a principle, to guide presidential action.

The first and second purposes imply a third purpose of the RAC- namely to supplement, but not supplant, the primary appointment method set forth in the Appointments Clause. The Framers must have anticipated that there would be situations in which the RAC did not authorize the President to fill vacancies, despite an urgent need, yet they chose to rely on advice and consent (or supplemental statutory authority) to address those situations. Perhaps this reflected a naïve assumption that the Senate would always act with dispatch when circumstances warranted, but is seems more likely that the Framers were willing to bear some risk of unfilled offices in order to protect the primacy of the advice and consent process.

However, because advice and consent appointment requires the cooperation of both the President and the Senate, the connection between any particular interpretation of the RAC and advancing this third purpose is somewhat obscure. A broad interpretation of the RAC may encourage the President to circumvent advice and consent altogether, or it may cause him to be less interested in listening to the Senate’s advice or nominating someone who could easily secure the Senate’s consent. On the other hand, a narrow interpretation of the RAC may discourage the Senate from acting promptly on the President’s nominations, or from giving them appropriate deference. But even this isn’t clear- a narrow RAC could arguably force the Senate to act more responsibly.

This calculus is difficult even if one accepts the widespread view that the Constitution mandates a certain code of conduct by the Senate in response to the President’s nominations. Under this view, the Senate ought to give significant deference to the President’s nominees (or possibly just non-judicial nominees) and each nominee is entitled to an up or down vote within a reasonable period of time.

This view may well be correct, but it is not obviously so. The Appointments Clause does not actually say how the Senate is to exercise its advice and consent function. It does not say that the Senate is required to hold a vote in order to signify its consent, nor that such a vote must be by a simple majority. It does not say that the vote must be held within a certain period of time. It does not say that all nominees (executive, judicial and independent agency) need to be treated in the same fashion. Finally, it says nothing about how the Senate is to provide “advice” on nominees and the relationship, if any, between the Senate’s advice and its consent. (For differing perspectives on these issues, see this exchange between Professors Larry Sollum and Michael Rappaport).

In short, interpreting the RAC in accordance with its purposes is not as simple and straightforward as it might seem. But those purposes provide some guidance in evaluating possible interpretations of the RAC, as I shall discuss in future posts.

 

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The Recess Appointments Clause, the Civil War Congress and Congressional “Acquiescence”

When we left the Recess Appointments Clause in the mid-19th century (for earlier posts, see here, here and here), the executive branch had embraced the proposition that a vacancy “may happen” in the recess of the Senate even though it first arose while the Senate was in session. The legislative branch had not accepted this position, but had not clearly rejected it either.

With regard to original vacancies, the situation was reversed. The Senate was understood to have rejected the use of the RAC to fill original vacancies, while the executive branch, to the extent that it had addressed the issue, seemed to have accepted the Senate’s position.

Neither branch, as far as I know, had directly addressed the lurking issue of whether Congress by legislation could change the baseline RAC rules. Presumably Congress may not regulate (or at least not eliminate) the core RAC power of temporarily filling vacancies that arise during the Senate’s recess. But can Congress legislate around the penumbral edges of the RAC?

For example, can Congress legislatively define the circumstances in which it would be proper for the President to fill a vacancy that arose before the recess in question began? Could it prohibit the President from filling the vacancy if he failed to submit a timely nomination while the Senate was in session? Could it prohibit the President from filling a vacancy that arose before the Senate session that preceded the recess? Could it prohibit successive uses of the RAC for the same vacancy? These questions remained (and still remain) open, but at this point Congress had not attempted to use its legislative power to curtail the President’s use of the RAC.

On the other hand, it seems to have been assumed that Congress could supplement the President’s RAC powers. As had been noted by the Senate Committee on Military Affairs in 1822, there had been “many instances” where Congress had created new offices and expressly delegated to the President the power to fill them during the recess. A statute enacted in 1792 allowed the President to fill vacancies, whether or not during the recess, in the offices of the Secretaries of State, Treasury and War. This clearly gave the President power that he would not have under the RAC. It appears that no one questioned Congress’s authority to bestow such powers on the President.

Such equilibrium as existed, however, was upset in the second half of the 19th century. In 1855, for example, Attorney General Cushing questioned the proposition that newly created statutory offices could not be filled using the RAC. Because he was addressing the issue of filling diplomatic and consular offices, Cushing relied primarily on the idea that these were constitutional offices that could be created by the President, rather than statutory offices (similar to the argument made by Bibb and Horsey in 1814). Nevertheless, Cushing stated that “I . . . cannot allow myself to think that, even if these were statute offices, and the public service should require any one of them to be filled during the recess, it could not constitutionally be done.” 7 Op. Atty Gen. 186, 225 (1855).

Continue reading “The Recess Appointments Clause, the Civil War Congress and Congressional “Acquiescence””

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Ethical Dilemma

Friday’s letter from the House Ethics Committee indicates that Billy Martin was asked “to review allegations that this Committee violated due process rights or rules attaching to Representative Waters.” Martin was also asked “to address whether recusal of any Members of the Committee should be considered and when would be the most appropriate time for his recommendations regarding recusal.” Martin apparently advised initially that recusal decisions should wait until he completed his due process review.

For reasons I suggested in August, I think this was the wrong approach. Whatever “due process violations” may have occurred, they should not prevent the Committee from moving forward with the Waters case so long as appropriate steps are taken to remove the taint of any past violations. Most obviously:

As a practical matter, it seems almost inevitable that Martin will recommend that some members of the Committee be recused from future involvement in the Waters case. Whether or not Martin agrees with or can substantiate Chisam’s allegations, recusal would help to ensure public confidence in the process and remove any potential taint from the prior proceedings. Rather than further delaying the Waters proceeding while he tries to untangle the legal and factual aspects of the alleged ex parte communications, it would make more sense for Martin to figure out who ought to be recused in order for the matter to move forward.

Because Martin’s due process review has been stymied by a “necessary witness” taking the Fifth, he has decided that now would be a good time to make recusal decisions after all. Accordingly, six current Committee members (all five Republicans plus Ranking Member Sanchez) have decided to recuse themselves from the Waters matter, and substitutes have been appointed from outside of the Committee. These six substitutes, plus the four other Democrats who are currently on the Committee (but did not serve on the Committee in the last Congress), will form a kind of substitute committee for purposes of the Waters case.

Does this mean that the Committee is going to take my advice and move forward with the Waters matter? Maybe . . . but I wouldn’t count on it. If they try to advance the Waters case without resolving the due process issues, Stan Brand (Waters’s counsel) will raise holy hell. And if the Committee tries to argue now that the due process issues do not need to be resolved, it will be a little hard to explain why more than six months and hundreds of thousands of tax dollars were spent trying to resolve them.

The other option is for the Committee to try to force the “necessary witness” to testify. It could do this by obtaining a grant of immunity under 18 U.S.C. § 6005. But there is a problem with this too. A grant of immunity requires a two-thirds vote of the full Committee. Who would be counted for purposes of the vote? Do the recused members count?

Even worse, there would seem to be a serious question as to the legality of the substitute appointments. The appointments were made under House Rule XI, clause 3(b)(5), and Committee Rule 9(e), which state that a member of the Ethics Committee may disqualify himself or herself “upon the submission in writing and under oath of an affidavit of disqualification stating that the member cannot render an impartial and unbiased decision in the case in which the member seeks to be disqualified.” One assumes that no such affidavits were submitted here because the Committee’s letter states that the recused members “believe that they each can render an impartial and unbiased decision in any proceeding related to this matter.”

Maybe there is another way around the problem, but I think the substitute committee will eventually need either (1) agreement from Waters and/or the necessary witness not to object to the composition of the committee or (2) a resolution of the House approving the appointment of the substitute committee. Otherwise any way forward is going to face even more procedural obstacles.

So what happens now? I am not sure, but the path of least resistance may be for the substitute committee to use other tools to pressure the necessary witness to cooperate. If the witness is whom I think, there are such tools available. But its going to be difficult road however they proceed.

Its another fine mess you’ve gotten us into, Stanley.

 

 

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Who Was the Mystery Witness Invoking the Fifth Before the House Ethics Committee?

According to a letter sent today by the House Ethics Committee to the Speaker, outside counsel Billy Martin has spent a good deal of time reviewing “allegations that this Committee violated due process rights or rules attaching to Representative [Maxine] Waters.” However, Martin has been unable to complete the due process review because one “necessary witness” has refused to cooperate with Martin’s investigation, and, when the witness was subpoenaed to testify, “communicated to the Committee that the witness would refuse to answer questions on the basis of the witness’s Fifth Amendment privilege.”

The letter states that Martin “has reviewed tens of thousands of pages of documents, and has interviewed current and former Committee Members as well as current and former Committee staff. Each current and former Committee Member and current employee, who was requested for interview, fully cooperated with Mr. Martin.” (emphasis added).

Following the rule of expressio unius est exclusio alterius (look it up), I would say that the witness invoking the Fifth is a former House Ethics Committee staffer. Any bets on who it is?

Update: According to John Bresnahan of Politico, the attorney for Morgan Kim and Stacy Sovereign says that they “both testified willingly and voluntarily before the special counsel and answered all questions asked of them.” So who does that leave?

 

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Alec Rogers on “Mr. Speaker! The Life and Times of Thomas B. Reed, the Man who Broke the Filibuster”

My former colleague Alec Rogers has been kind enough to share this review of James Grant’s biography of Speaker Thomas Reed:

James Grant is best known for his financial analysis, shared with those willing to part with a pretty penny, via the eponymous Grant’s Interest Rate Observer (current subscription rate: US$910).  For decades, Wall Streeters have prized his contrarian, quirky insights, and those that have been willing to act on his skepticism even during the most bullish of markets have seen their investments in his publication returned countless times over.  The Observer has never wanted for historically based pieces, looking into America’s financial past for insight into contemporary markets.

Grant’s love of history, however, has led him to venture into writing full length biographies, the subjects of which have been themselves quirky, interesting characters (e.g. the financier Bernard Baruch, President John Adams).  The subject of his latest book, Mr. Speaker! The Life and Times of Thomas B. Reed, the Man who Broke the Filibuster, however, really demonstrates Grant’s talents for uncovering undervalued assets.  The result is an intriguing trip with a fascinating guide into a part of American history that’s all too quickly rushed through in a typical history class.

Thomas Brackett Reed is not exactly a household name, perhaps not even in the home of a political historian.  A Mainer born and bred, Reed was a Member of Congress and eventually the Republican leader in the House during much of what has now become known, thanks to Mark Twain, as the “gilded age” for what Twain perceived as being only a superficially elegant surface covering a corrupt underbody.  Reed rose to the Speakership when the Republicans held the majority in 1889 and 1895 for a combined six years.  It was there Reed was to make his mark on the House if not the country.

To fully appreciate the story, it’s important to understand that Reed’s tenure in Congress and Speakership occurred mostly in the period before the Presidency had matured into the powerful office of today.  Prior to William McKinley, the occupant of the Oval Office was still more of the “chief magistrate” that earlier generations of Americans had mostly known.  Only during crisis such as the Civil War had they seen glimpses of what the office could and would become once America became a world power.  As a consequence, Reed and his ilk were able to be far more influential than we might otherwise suppose, living as we do during a time when the President is seen as virtually synonymous with the federal government itself.

Continue reading “Alec Rogers on “Mr. Speaker! The Life and Times of Thomas B. Reed, the Man who Broke the Filibuster””