Category: Appointments and Removal

Your humble blogger is pretty much speechless after the D.C. Circuit’s sweeping decision today in the Noel Canning recess appointments case. In light of the oral argument, it is not all that surprising that the panel held that the Recess Appointments Clause only permits inter-session recess appointments. But I am pretty stunned (although admittedly this was foreshadowed in the oral argument as well) that it also held that the Clause only permits recess appointments for vacancies that actually occur during a recess. Why it chose to reach the latter issue (when, as Judge Griffith points out in his partial concurrence, it did not need to) is a matter of speculation. Here’s mine: to guarantee that the Supreme Court will hear the case.

Further analysis of the decision will have to wait awhile. But for the moment let me point the following passage from Judge Sentelle’s opinion:

The Clause sets a time limit on recess appointments by providing that those commissions shall expire “at the End of their [the Senate’s] next Session.” Again, the Framers have created a dichotomy. The appointment may be made in “the Recess,” but it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session, or it is in the recess.

 (emphasis added). For reasons I have previously stated at interminable length, this is clearly correct.

More from the Noel Canning argument: No doubt much to her surprise, Beth Brinkmann was questioned intensively about the meaning of the phrase “which may happen” in the Recess Appointments Clause. Both Judge Sentelle and (to a lesser extent) Judge Griffith were unimpressed by the longstanding executive branch position, dating back to Attorney General Wirt in 1823, that this phrase means vacancies that “happen to exist” during the recess.

In response, Brinkmann pointed out that Wirt was advising President Monroe, whom she identified either as a “framer” or a “founder” (I can’t remember which) of the Constitution.  This fact, she suggested, bolstered the credibility of Wirt’s interpretation.

Monroe was not at the 1787 Philadelphia Convention, but he was a delegate to the Virginia convention that ratified the Constitution. Monroe voted against ratification, contending that it gave the federal government too much power. I am fairly sure that there is no evidence of Monroe expressing any view about the RAC at the ratifying convention and, for that matter, I am not aware of Monroe commenting on the RAC at any time in his life.

So what are we to make of the fact that, more than 30 years after the drafting and ratification of the Constitution, Monroe received an opinion from his Attorney General that the RAC applied to all vacancies that “happen to exist,” rather than only those that “happen to arise,” during the Senate’s recess? By Wirt’s own admission, his interpretation relied on the “reason and spirit” of the Constitution, while the contrary interpretation was more consistent with its “letter.” Moreover, although not mentioned (and possibly not known) by Wirt, there were at least two actual framers, Edmund Randolph and Alexander Hamilton, who made far more contemporaneous statements in support of the “happen to arise” interpretation.

Presumably Brinkmann is claiming that if Wirt’s interpretation had been wrong, Monroe would have rushed into Wirt’s office saying something like the following: “Bill- even though I voted against ratifying the Constitution because it gave too much power to the central government, I specifically remember thinking ‘thank goodness it doesn’t give the president the power to circumvent the Senate whenever it fails to confirm his nominees.’ Now take this opinion back and redo it. And by the way, you might want to consider whether joining the Freemasons is a good career move.”

I’d say the probative value of this “evidence” is between slim and none. And Slim’s out of town.

There were many important issues raised in today’s D.C. Circuit argument in Noel Canning v. NLRB, the recess appointments case, but lets start with some unimportant ones.

How do you pronounce Harry Daugherty’s name? The Justice Department lawyer representing NLRB, Beth Brinkmann, pronounced it “Dockerty,” and the panel went along with that. I have always pronounced it “Doh-her-tee” or “Daw-her-tee” (according to Wikipedia, its “daw-HER-tee”). I think if DOJ is going to rely so much on Daugherty’s opinion, it should at least know how to pronounce his name. Exit question- how do they pronounce it on “Boardwalk Empire”?

How come this can’t be the Goya Rice case? According to Noel Francisco, who appeared on behalf of Noel Canning and the Chamber of Commerce, the Chamber has standing to intervene in the case because it has at least two members, Noel Canning and Goya Rice, currently participating in proceedings before the NLRB. It would be a lot easier to explain the importance of the Recess Appointments Clause to my children if Goya Rice were the named party—they have never heard of Noel Canning, but we go through a box of Goya Rice every week.

Why isn’t Senate Legal Counsel here? Judge Griffith, himself a former Senate Legal Counsel, asked this question during the argument. Griffith was making the rhetorical point that the Senate had not taken a position in the case, but the literal answer to his question was that Senate Legal Counsel was in an overflow courtroom downstairs. By the time he and the Deputy Senate Legal Counsel arrived, there was no more room in the main courtroom (though Senator McConnell, who arrived afterward, apparently had a reserved seat). I sat in the overflow courtroom as well, where a watchful clerk made sure no one was live blogging the proceedings.

What’s so great about unanimous consent anyway? Francisco argued that since nominees are usually confirmed by unanimous consent, the fact that the Senate could only act by unanimous consent during its pro forma sessions did not prevent the President from getting nominees confirmed. Judges Griffith and Sentelle were at immediate pains to point out that not all nominees are approved by unanimous consent. Sentelle, who was confirmed by an 87-0 vote, reiterated the point, possibly throwing a meaningful look at Griffith (there was only audio in the overflow courtroom). “I said usually,” stressed Francisco. “Lets move on,” said Griffith, who was confirmed 73-24, good-naturedly. Judge Henderson, who was confirmed by unanimous consent, tactfully remained silent.

 

 

 

 

Below are links to judicial decisions on recess appointments and to ongoing litigation.

Continue reading “Judicial Materials on Recess Appointments”

This Thursday, October 25, from 9am to 10:30am, I will be moderating a panel discussion at the ABA Administrative Law Conference entitled “Recess Appointments: Legal Challenges to President Obama’s appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board.” The panelists will be Ambassador C. Boyden Gray and Professor Michael Gerhardt, both of whom testified before Congress earlier this year regarding the recess appointments (Gray is also representing the plaintiffs in the legal challenge to the CFPB).

The conference is taking place at the Capital Hilton; registration information is here.

 

 

Set forth below are congressional materials related to recess appointments in the following categories: (1) Congressional debates and Reports; (2) Congressional hearings; (3) the Draft Senate amicus brief in Mackie v. Clinton; (4) CRS reports and (5) Comptroller General opinions

Continue reading “Congressional Materials on Recess Appointments”

Apropos of my last post, a friend remarks that I have too much time on my hands. Confirming this hypothesis, please find below a list of OLC opinion and memoranda, with commentary and links, regarding recess appointments. Continue reading “OLC Opinions on Recess Appointments”

I know what you’re thinking. Where can I find a comprehensive guide to U.S. Attorney General opinions on recess appointments? Complete with handy summaries and links to explanatory posts?

Look no further. Like Tom Lehrer’s musical rendition of the elements, the listing below may prove useful to some of you someday, under a somewhat bizarre set of circumstances.

  Continue reading “Attorney General Opinions on Recess Appointments”

I really, truly intend to leave the subject of the Recess Appointments Clause, but, as I was compiling material for a final post to be entitled “The Recess Appointments Clause in One Place,” I came across this interesting and somewhat instructive episode from the Reagan Administration.

On Friday afternoon, January 18, 1985, a young lawyer in the White House Counsel’s office by the name of John Roberts telephoned Herman Marcuse, a very not young lawyer in the Office of Legal Counsel. Marcuse’s memo to the file explains that Roberts:

presented a question about the President’s power to make recess appointments to the Board of Directors of the Export Import Bank. He advised me that the terms of two of the directors would expire on January 20, 1985, and inquired whether the President could make recess appointments to the Board in the morning of January 21, 1985 before the Senate would reconvene from its recess at noon. I asked Mr. Roberts when the recess began, and he stated that it began on January 3.

Marcuse advised Roberts “that the recess period of 18 days was extremely short” and said that in light of “the close and delicate nature of the question,” he would need to consult with his OLC colleagues. Roberts explained that the matter was “rather urgent.” (To those who didn’t go to Harvard Law School, you see, this might not be self evident from a Friday afternoon phone call regarding the constitutionality of an action the President wants to take on Monday morning).

Continue reading “Chief Justice Roberts and the Recess Appointments Clause”

A few years ago, when there was a great deal of consternation regarding filibusters of judicial nominees, Professor Aaron-Andrew Bruhl published a typically thoughtful article entitled “If the Judicial Confirmation Process is Broken, Can a Statute Fix It?” Bruhl considered a hypothetical statute that would regulate the confirmation process by, for example, requiring the Senate to conduct an up or down vote on a nominee within a particular period of time.

Bruhl concluded that while it would be constitutionally permissible to enact such a judicial confirmations statute, the statute would not be legally binding on the Senate. While the Senate might feel politically or morally obligated to follow the rules set forth in the law, it would “retain unilateral control over its confirmation procedures regardless of what any statute may say” because the principle of cameral autonomy, embodied in the Rules of Proceedings Clause among others, so demands.

Suppose, however, there were a statute which did not purport directly to regulate the Senate’s internal processes, but granted the President temporary appointment authority conditioned on certain occurrences within those processes? For example, the President might be authorized to make a temporary appointment if a nomination had been made, a certain period of time had elapsed and the Senate had  taken no action with regard to the nomination. The authority granted would not be dependent on the existence of a recess, and so the statute would not be vulnerable to some of the constitutional objections discussed in the context of a hypothetical Senate rule.

There could, however, be other objections. For one thing, Professor Rappaport argues that Congress lacks the power to authorize the temporary appointment of superior officers, although it can authorize the occupants of existing offices to assume the duties of other offices when the latter become vacant (as in the Vacancies Act). It also might be argued that the hypothetical statute, while not directly regulating the Senate’s internal procedures, places unconstitutional burdens upon it, and therefore would remain subject to revision under the Rules of Proceedings Clause.

I am not sure that these objections are well taken, but I am also not sure it matters. The Pay Act, for example, would seem to be unconstitutional under the executive branch’s theory of the Recess Appointments Clause (as it has suggested from time to time), yet it has followed the requirements of that statute (well, where it can’t figure out a way to weasel out of them) for a century and a half.

After all, the point of a constitutional settlement is to settle constitutional differences, which means making accommodation for constitutional positions that are arguably wrong. The alternative is to have the dispute settled by an authoritative tribunal or having it remain unsettled. For reasons discussed in prior posts, it seems to me that a constitutional settlement, either through a Senate rule or a statute, is the better alternative.

So I now come to the end of my very long discursion on the RAC.  Hopefully, these many posts have not completely bored my faithful readers, and perhaps they will even contribute in some way to the public good. At this point, however, I think I have exhausted this topic (any myself). I do intend to compile and post a list of sources on the RAC- I think that will be useful to future researchers.

I am also moderating a panel that will focus on current RAC litigation at the ABA Administrative Law Conference in DC at the end of October. More details to follow.