The Constitution’s Recess Appointments Clause,
adopted at a time when gathering scattered legislators in the
capital for a special session posed serious practical difficulties,
was intended to let the president fill vacancies when the Senate
was not available to provide its “advice and consent.” During the
last century, the clause evolved into a pretext for making
appointments the Senate refused to approve. Yesterday, during
oral argument in a Supreme Court case involving appontments to
the National Labor Relations Board (NLRB), several justices
questioned the constitutionality of this shift, indicating that the
Court is inclined to impose limits on the president’s ability to
dodge the “advice and consent” requirement.
Justice Elena Kagan suggested that the original rationale for
recess appointments is obsolete in an age when the Senate can be
reconvened as quickly as its members can fly back to
Washington:
Presidents of both parties essentially have used this clause as
a way to deal, not with congressional absence, but with
congressional intransigence, with a Congress that simply does not
want to approve appointments that the president thinks ought to be
approved….
This is not the horse-and-buggy era anymore….There’s no such
thing truly as congressional absence anymore. And that makes me
wonder whether we’re dealing here with what’s essentially an
historic relic, something whose original purpose has disappeared
and has assumed a new purpose that nobody ever intended it to
have.
Justice Samuel Alito took up the same theme, telling Solicitor
General Donald Verrilli:
You are making a very, very aggressive argument in favor of
executive power now, and it has nothing whatsoever to do with
whether the Senate is in session or not. You’re just saying when
the Senate acts, in your view, irresponsibly and refuses to confirm
nominations, then the president must be able to fill those
positions.
Verrilli agreed, saying, “I think the recess power may now act
as a safety valve given that intransigence.” The problem with that
position, as Chief Justice John Roberts pointed out, is that the
Senate has “an absolute right not to confirm nominees that the
president submits.” Justice Stephen Breyer also seemed troubled by
the idea that the Recess Appointments Clause is a remedy for
congressional “intransigence,” saying, “I can’t find anything that
says the purpose of this clause has anything at all to do with
political fights between Congress and the President….Where is it
in the history of this clause, in its origination, that it has as a
purpose to allow the President to try to overcome political
disagreement?”
Miguel Estrada, arguing on behalf of Senate Minority Leader
Mitch McConnell (R-Ky.), argued that such use of recess
appointments is illegitimate, since “there is no power in the
Constitution to use the Recess Appointments Clause to overcome the
opposition of the Senate to the president’s nominees.” Noel
Francisco, the lawyer for the company challenging the NLRB
appointments, warned that “the government’s position…would
eviscerate [the requirement of Senate approval], creating a
unilateral appointment power available for every vacancy at
virtually any time, with advice and consent to be used only when
convenient to the president.”
That is not much of an overstatement. The Constitution says “the
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.” The Obama
administration maintains that “the recess” can occur not just
between sessions of Congress but during any break when the Senate
is not conducting business, that the president can unilaterally
determine when such a break has occurred, and that the vacancy need
not arise during the break.
Regarding that last point, Verrilli argued that a vacancy can be
said to “happen” during a recess if it continues then, even though
it arose while the Senate was in session. Justice Antonin Scalia
questioned that reading:
Death is an enduring state. But if someone dies in 1941, you
don’t say he died in 1945. He’s still dead.
Justice Anthony Kennedy noted that the
original version of the Constitution, which gave state
legislators the power to pick senators, included a provision
similar to the Recess Appointments Clause: “If Vacancies happen by
Resignation, or otherwise, during the Recess of the Legislature of
any State, the Executive thereof may make temporary Appointments
until the next Meeting of the Legislature, which shall then fill
such Vacancies.” That provision was understood to let governors
fill vacancies only if they arose between legislative sessions—a
fact that “favors your position,” he told Francisco.
Justice Clarence Thomas, as usual, did not speak during the oral
argument. But given his originalist inclinations, it seems safe to
assume he is not receptive to the idea that the Recess Appointments
Clause can legitimately serve “a new purpose that nobody ever
intended it to have,” as Kagan put it. Given the skepticism
expressed by Roberts, Scalia, Alito, and Kennedy, that’s at least
five votes against the administration. Kagan and Breyer also seemed
troubled by some of the government’s arguments and might end up
joining an opinion that rejects at least part of Obama’s position.
The idea that the Senate does not get to decide when it’s in recess
seems especially vulnerable.
Although in this case it’s a Democratic president using recess
appointments as a way to avoid an inconvenient constitutional
requirement, that sort of abuse has a bipartisan pedigree, as Kagan
noted. In fact, Republicans (especially George W. Bush) have used
this particular evasive maneuver
more often than Democrats. “We have different political parties
taking absolutely opposite sides,” Breyer observed, “depending on
the political party of the President.” This case is therefore an
excellent opportunity for the justices to show that they are
committed to upholding the Constitution without regard to partisan
politics.