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Constitutional Settlements and the Recess Appointments Clause

We have now learned a good deal (some might say too much) about the Recess Appointments Clause, and it is time to consider how this knowledge might be employed for the betterment of the Republic. The many open questions regarding the interpretation and application of the RAC are an invitation to constant disputation and uncertainty regarding the validity of recess appointments. The executive branch’s theories are broad enough to allow the President to fill any vacancy at virtually any time, and to keep it filled throughout his term (and beyond), without Senate participation. Meanwhile, there are respectable counter-arguments, some of which have enjoyed wide currency in Congress, that cast doubt on the validity of the vast majority of modern recess appointments.

This is not a healthy situation. As Donald Morgan notes in Congress and the Constitution 25 (1966), “satisfactory settlement of constitutional questions is . . . necessary [because] [f]ailure to achieve settlement may cause inconvenience, confusion, disorder, retaliation, violence, and even civil war.” In the present case it may also cause embarrassment, as politicians, lawyers and the like rush to switch sides depending on whose ox is being gored. (For an example, see Adam White’s cleverly titled “Confirmation Bias”).

But how to reach a constitutional settlement? Many would argue, or simply assume, that this can be achieved only by a Supreme Court decision. As the courts like to remind us incessantly, it is their province to “say what the law is.” Until they say, the theory goes, who knows what the law is?

Not all constitutional questions, however, are well-suited to judicial resolution. There have been and will be challenges to President Obama’s recent recess appointments, but no one knows if or when the courts may rule on the merits of the RAC issues. The fact that the Supreme Court has never decided an RAC case bespeaks a certain reluctance to get involved in these intensely political fights between the executive and legislative branches.

Even if the Court were ultimately to reach the merits, it is not apparent that this would be in Congress’s institutional interest. In the first place, there is a strong possibility that the Court will accept the executive branch’s interpretation of the RAC. Although Professor Rappaport correctly observes that the Court is not bound to follow the executive branch’s position (noting that “[c]ommentators and courts generally view government practice to be less weighty than judicial precedent,” I suspect that established executive branch practices would exert a strong gravitational pull on the judiciary’s decisionmaking. Here it is worth remembering that these practices have involved filling more than a few judicial vacancies in the past, and the absence of sustained resistance appears to reflect some degree of judicial acquiescence.

Furthermore, if the Court were to look skeptically on Obama’s recent appointments, it would likely rule against them on the narrowest possible grounds. By upholding the validity of the Senate’s “pro forma sessions,” for example, the Court could reject the appointments without disturbing the executive branch’s pre-existing RAC practices. By contrast, if the Court were to uphold the appointments, it presumably would validate most or all of those practices. A judicial decision therefore poses an asymmetric threat to congressional interests.

Beyond this is the question of whether it is proper for Congress to rely on lawsuits (brought by private parties) to vindicate its institutional interests. As Morgan explains at some length, the expectation at the time of the founding and throughout the 19th century was that each branch had the power and duty to interpret the Constitution in its own sphere. See, e.g., Congress and the Constitution 10-11, 54-56, 74-78, 96-98. The idea of “judicial supremacy” (or what Morgan terms “judicial monopoly”), i.e., the concept that constitutional interpretation is a specialized legal task only the courts can perform, did not predominate until after the New Deal.

In recent years there has been increasing push-back against this idea, first from legal scholars and now from protections. As Joel Alicea observes (see Stare Decisis in an Originalist Congress), in the 2012 primaries “[a]n implied consensus emerged among the Republican presidential candidates that the political branches have an independent duty to evaluate the constitutionality of legislation.”

The argument for congressional action is even stronger in the separation-of-powers context. If Congress cannot bestir itself to protect its own institutional interests, it should hardly be surprised if the courts fail to do so for it. See J. Tulis, On Congress and Constitutional Responsibility, 89 B.U.L.Rev. 515, 516 (2009) (describing Congress’s “constitutional abdication” of its powers and prerogatives).

Indeed, since the constitutional design anticipates that the branches will engage in a degree of conflict and contestation, it would seem that Congress is obligated to stand up for its own interests with respect to recess appointments (among other matters). Thus, Professor Josh Chafetz argues “the virtues of representation, tyranny-prevention, and deliberation-promotion” are advanced by the process of continual constitutional conflict among the branches. J. Chafetz, Multiplicity in Federalism and the Separation of Powers, 120 Yale L.J. 1084, 1128 (2011). Emphasizing that “these goods result from the fact of conflict itself,” he contends that “[a]ny principled, final resolution to the underlying conflict would destroy the deliberative virtue.”

Chafetz’s argument may cause us to reconsider whether a constitutional settlement regarding the RAC is desirable at all. Perhaps it is better to let the President push the envelope of recess appointments as far as he dares, and let the Congress and/or Senate push back through political means such as refusing to confirm his nominees.

I don’t believe, however, that constitutional struggle over the RAC has done much to advance the goals Chafetz identifies. Unlike say questions of executive privilege, which involve balancing the interests of the executive and legislative branches on a case by case basis, there is very little value in perpetual debates about what constitutes a “recess.” Moreover, continual uncertainty about the right of recess appointees to exercise their temporary commissions undermines the proper functioning of the RAC.

The debate over whether the “pro forma sessions” of the Senate should be disregarded for purposes of determining whether the Senate in “recess” nicely illustrates the sterile and unproductive of the debate. It is hard to see how a single Senator appearing on the floor, doing nothing, and going home is advancing an important constitutional goal. Put another way, if pro forma sessions are the answer, it must have been a stupid question.

Again, however, a judicial resolution to this conflict may be less than optimal. A court decision would define the RAC in such a way as to shift power from one of the political branches to the other. This in turn will give the power-gaining branch greater leverage in the advice and consent process and reduce its incentives to cooperate and compromise with the power-losing branch.

By contrast, a congressional settlement has the potential to condition the exercise of the RAC power on performance in the advice and consent process. We see an example of this in the Pay Act, where the ability of recess appointees to receive salaries is dependent on the President acting in a timely fashion to submit nominations to fill the vacancies in question.

Morgan notes that Congress enjoys some institutional advantages over courts with respect to certain types of constitutional settlements. See Congress and the Constitution 29 (“Representation, free discussion, political experience, and a capacity for institutional innovation all equip Congress to share in the function of constitutional settlement.”). Thus, there is a strong argument for direct congressional action, as opposed to passive reliance on the courts, to achieve a constitutional settlement with respect to the RAC.

In my next posts on this subject, I will consider what types of constitutional settlements might be reached through various judicial and extra-judicial mechanisms.

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