Point of Order

Now I will turn to the question of how a new set of rules governing recess appointments, such as those discussed in my prior post, might be put into place. One possibility is that they could be set forth in a new Senate rule.

This would seem to raise at least two constitutional questions. First, can the Senate by rule take away from the President power that he has (or claims to have) under the Recess Appointments Clause? The answer to this, I think, is no. If the Senate wants the President to forbear from exercising his power under the Recess Appointments Clause (except in the circumstances defined by the Senate rule), it will have to dissuade him from doing so by a combination of (1) offering an alternative system that is superior to the current one from the executive perspective and (2) taking retaliatory action if the President should make recess appointments outside of that system. Given the deficiencies of the current system, this does not appear to be an unreachable goal.

Second, can the Senate by rule authorize the President to make temporary appointments when it is not in “recess”? Theoretically, the answer to this is also probably no. On the other hand, the Senate arguably has the power to declare a recess whenever it pleases. Professor Seth Barrett Tillman, for example, argues that the Senate has the power to end a recess appointment simply by declaring a recess and then reconvening in a new session. (See Tillman and Kalt Colloquy on Senate Termination of Recess Appointments, 103 NW U. L. Rev. 286 (2009)).

The alert reader may observe that this is not my view. True, I do not think that the best reading of the Constitution would deem the Senate’s day-to-day adjournment to be a “recess” within the meaning of the RAC. But if the Senate and the President agree to treat particular adjournments as “recesses,” and the House does not object, who exactly would be harmed by this legal fiction? (It certainly no worse than conducting business without a quorum, as both houses routinely do).

Assuming that we can surmount this hurdle, it would seem relatively easy to structure a Senate rule that would achieve the goals we have discussed. The Senate could deem periodic adjournments (eg, the first adjournment of every month) to be a “recess,” and it could “authorize” temporary appointments to fill any vacancy where a nomination had been pending for more than a certain period (which period, as discussed in my previous post, could vary by nomination). The temporary appointment would expire at the next “recess” following the Senate’s confirmation (or rejection) of the nominee or when the Senate returned the nomination to the President without taking action.

Again, I recognize that this approach would take some liberties with the text of the RAC. But unlike current practice, which is also difficult to square with the text, such an approach would actually advance the purposes of the RAC, while balancing the legitimate interests of the Senate and the President. To quote Professor Tillman (regarding his own proposal, to be sure), “the winner here is not the Senate or the President, but it may be us.” (emphasis in original).

The alternative to this approach would be for Congress to enact a statute governing temporary appointments. I will discuss the pros and cons of that alternative in a future post.

Another potential means of reaching constitutional settlement with regard to the Recess Appointments Clause would be to design a new set of rules for when and how the President exercises his power under that clause. The question that I will now turn to is whether it would be possible, as a constitutional and practical matter, to do this without a constitutional amendment.

First, though, it’s worth sketching out the rules that might be developed if the interested parties (principally the Senate and the executive branch) sat down to think about it. The most obvious reform would be to take the “recess” out of the RAC. In modern times, the question of whether the Senate is in recess has little if anything to do with the executive ‘s reasons for making recess appointments. As Professor Michael Herz observes, the modern “Senate is simply never out of session long enough for a vacancy . . . truly to need filling before its return.

The real reason that Presidents use the RAC today is not because of the Senate’s unavailability, but because of its inability or unwillingness to act on nominations in a speedy fashion. Although the party that controls the White House always feels this problem with more acuity, I think there is a widespread recognition that it is a problem.

A better approach would be to tie the President’s ability to make temporary appointments not to whether the Senate is in recess, but to whether the Senate has unreasonably delayed in acting on a nomination.

But how much delay is “unreasonable”? One rough way of making this determination would be to see how long it took the President to make the nomination in the first place. If the President moves quickly to make a nomination to fill a vacancy, this is some indication of urgency. Of course, no matter how quickly the President acts, the Senate needs some time to perform its advice and consent function. Thus, the Senate might be given, say, the longer of 60 days or the period that it took the President to make the nomination (there might also be an upper time limit of a year or so).

Once the advice and consent process has dragged on long enough, the President would be authorized to make a temporary appointment. There is, however, no reason why this appointment should last for up to two years, as current practice would permit. Rather, it would make sense for the appointment to expire when the Senate returns nominations to the President pursuant to Senate Rule XXXI. The return of these nominations provides a break in the process, giving the President an opportunity to decide whether to resubmit a nomination or nominate someone else. It would be logical for the temporary appointment likewise to expire, since the President may wish (and the Senate may prefer) a new temporary appointee.

Other questions that should be addressed in designing a new set of rules include: (1) should there be a limit to the President’s ability to make successive temporary appointments to fill the same vacancy and, if so, what should it be? (2) should the Senate’s failure to confirm a nominee over a certain period of time or after two or more re-nominations amount to a rejection? (3) should there be an opportunity for the Senate, either as a body or through the committee of primary jurisdiction to provide “advice,” not merely consent, to the President (e.g,, by providing names of individuals who would be broadly acceptable as either permanent or temporary appointees); and (4) should the President be required to consult with the Senate before submitting nominations and/or making temporary appointments?

In my next post I will consider whether rules of this general type could be imposed through a Senate rule.

Earlier this month Senator McConnell placed in the Congressional Record a CRS memorandum regarding pro forma sessions (hat tip, Mort Rosenberg). The memo makes three points of interest to those who are following the legal challenges to President Obama’s January 2012 recess appointments.

First, CRS notes that the term “pro forma” relates to the reason for holding the session (i.e., for sake of formality), but “does not distinguish the nature of the session itself.” A “pro forma session is not materially different from other Senate sessions.”

CRS indicates that a pro forma session has the same authority to act as any other type of session: “Should the Senate choose to conduct legislative or executive business at a pro forma session, it could, provided it could assemble the necessary quorum or gain the consent of all Senators to act.” (I infer from this, although it is not completely clear, that if a majority of Senators attended a pro forma session, they could set aside any unanimous consent agreement that restricted the pro forma session).

Second, CRS identifies instances where the Senate conducted pro forma sessions only for periods of more than 30 days, and the Senate Executive Clerk did not return nominations to the President under Senate Rule XXXI. Since that rule, I have argued before, provides the clearest line of demarcation between session and recess for purposes of the Recess Appointments Clause, this is evidence that Senate practice does not treat a pro forma session as a recess.

Finally, CRS identifies a number of statutory provisions that require computing periods of congressional sessions for purposes of whether a particular executive action or authority has become effective. For example, under the Congressional Review Act, certain agency rules do not become effective until the Senate has had 60 days of “session” to act on a joint resolution of disapproval. For these purposes, days of “pro forma sessions” are counted, a practice accepted by both the legislative and executive branches.

Next on the list of possible mechanisms to achieve constitutional settlement with respect to the Recess Appointments Clause is something that would fall into the category of congressional “self-help.” There are a variety of means by which Congress could express its displeasure with the administration’s use of the RAC; most of these would be political in nature and do not require extended legal analysis. There is, however, one enforcement mechanism specifically designed to limit executive use (or abuse) of the RAC- the Pay Act, originally enacted by the Civil War Congress and codified in its current form at 5 U.S.C. § 5503.

The Government Accountability Office will respond to congressional requests for opinions regarding the duration of recess appointments and the application of the Pay Act to particular appointments. A favorable GAO opinion on either of these points would bolster Congress’s ability to constrain recess appointments, and Congress has a strong case to make on each. It is therefore surprising that no one appears yet to have sought a GAO opinion regarding President Obama’s January 2012 recess appointments.

Continue reading “The Pay Act and the GAO as a Means of Constitutional Settlement”

Today I will begin appraisal of the various methods of achieving constitutional settlement on the question of recess appointments. I will start with the judicial arena.

Pending Cases

There are currently at least two significant cases challenging the constitutionality of President Obama’s January 4, 2012 recess appointments.

A. Challenge to NLRB recess appointments. Noel Canning v. NLRB, now pending before the D.C. Circuit, challenges the authority of the National Labor Relations Board to exercise any authority (such as adjudicating labor disputes or promulgating rules) on the grounds that Obama’s recess appointments of three of the NLRB’s five members were invalid, thereby depriving the agency of a quorum.

The U.S. Chamber of Commerce has sought to intervene on the side of Noel Canning. Its motion argues:

[T]he Recess Appointment Clause only allows the President to act when the Senate is in recess, and the Senate was not in recess at the time of these appointments. Indeed, the Senate could not constitutionally go into recess because Article I, § 5, cl. 4, prohibits the Senate from going into recess absent consent from the House of Representatives, and the House of Representatives did not give such consent here. The Senate conducted pro forma sessions twice weekly from December 20, 2011 until January 23, 2012- never going into recess- and the President thus lacked constitutional authority to issue appointments under the Recess Appointments Clause.

Chamber Motion to Intervene at 10 (emphasis in original). The Chamber contends that its intervention is necessary because Noel Canning “is a small, individual employer with limited resources” that has an incentive “to prevail on any ground possible– including, for example, fact-specific grounds that are unrelated to the critical constitutional issue presented by this case—at the lowest possible cost.” Id. at 13. The Chamber, by contrast, represents the broader perspective of thousands of businesses with “a strong interest in resolving the legality of the President’s recess appointments to the [NLRB] as expeditiously as possible.” Id.

Meanwhile, Senate Republicans have retained Miguel Estrada to file an amicus brief in this case. Senate Minority Leader Mitch McConnell explained: “The president’s decision to circumvent the American people by installing his appointees at a  powerful federal agency, when the Senate was not in recess, and without obtaining the advice and consent of the Senate, is an unprecedented power grab. We will demonstrate to the court how the president’s unconstitutional actions fundamentally endanger the Congress’s role in providing a check on the excesses of the executive branch.”

B. Challenge to CFPB recess appointment. The second case is State National Bank of Big Spring v. Geithner, No. 1:12-cv-01032, which was filed on June 21, 2012 in the U.S. District Court for the District of Columbia and assigned to Judge Huvelle. The complaint alleges that the formation and operation of the Consumer Financial Protection Bureau violates separation of powers. It also contends that the January 4 recess appointment of CFPB’s first director, Richard Cordray, was invalid. The recess appointment, it says, was “an unconstitutional act that circumvented one of the few remaining (and only) checks on the CFPB’s formation and operation.” Complaint ¶ 79.

The complaint identifies three reasons why Cordray’s appointment was invalid: (1) “the Constitution gives the Senate the exclusive power to determine its rules, and the Senate declared itself to be in session;” (2) “the House of Representatives had not consented to a Senate adjournment of longer than three days, as it must to effect a recess;” and (3) “the Senate passed significant economic policy legislation during the session that the executive branch alleged to be a recess.” Complaint ¶¶ 81-83.

Note that the complaint counterposes “session” and “recess” so as to suggest that the Senate can only be in one of these states at any given time. Presumably, therefore, the plaintiffs intend to contest the executive branch position that the Senate can ever be in an “intrasession recess. Continue reading “Recess Appointment Litigation As A Means Of Constitutional Settlement”