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.

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?

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.

Reed himself is a fascinating subject.  A very talented lawyer who used his skills in the thrust and parry of congressional debate, he could be at times the most cynical of party hacks, rising to the very top of the greasy pole during an era when corruption and graft were vital parts of American politics.  Yet, Reed himself was fiercely honest, living off his congressional salary and living a modest lifestyle when others, such as his Maine rival James Blaine were somehow living the life of a corporate plutocrat on a public salary.  In addition, Reed could be deeply principled.  He was devoted to women’s suffrage and strongly opposed to the growing bellicosity of US foreign policy.  He would resign his seat rather than carry his party’s water during the Spanish-American War.  Readers will revel in Reed’s caustic wit and his penchant for one liners and put downs.

Chapters are devoted not only to Reed’s personal life and career (indeed his personal life is given particularly short shrift) but to the important issues of the day.  To read Mr. Speaker is to take a course on the political economy of America in the latter half of the 19^th century from a writer who has earned a small fortune explaining the most technical, mundane aspects of finance in clear, colorful prose.  Grant covers topics such as the commission examining the election of President Rutherford Hayes in which both parties had dirty hands, but where the allegation of a “stolen election” was likely true.  Another chapter serves as a masterful introduction to the challenging but vital issue of currency.  Much of the politics of the late 19^th century revolved around the debate between those who wanted to maintain gold as the only acceptable US currency and those looking to temper the tight monetary effect of the gold standard with silver coins or, horrors, paper money.  Paper money that was not convertible to gold had been introduced to pay for the Civil War.  After a decade and a half of wrangling, the US returned to the gold standard in 1879.  Paper would stay in circulation, but exchangeable for gold at $20.67 an ounce.  This of course had the effect of limiting the amount of paper that could be circulated, which both led to tight money and served to guard against inflation.  The amount of paper exceeded the amount the US had in gold at this time.  The US only had enough gold to redeem $141.9m but there existed $346.7m in paper money.  There was the very real threat the U.S. would be asked to redeem more than it could pay out in gold.  Yet, when the time came, the American people decided that paper was more convenient after all, and that merely knowing the money was convertible was enough.

Many years before the 1814 debate, Alexander Hamilton stated that the RAC was inapplicable to newly created offices on both the first and third grounds. In 1796, Hamilton advised President Washington that the RAC could not be used to create and fill a new diplomatic position during the recess of the Senate. See David Currie, The Constitution in Congress: The Federalist Period 1789-1801 154 n. 168 (1997). In a 1799 letter to the Secretary of War, Hamilton reiterated his view that “Vacancy is a relative term, and presupposes that the Office has been once filled.” Id. He also argued that “the phrase ‘which may have happened’ serves to confirm this construction” because “it implies casualty- and denotes such Offices as having been once filled, have become vacant by accidental circumstances.” See Michael Rappaport, The Original Meaning of the Recess Appointments Clause 31-32 (2005).

In 1822, the Senate Committee on Military Affairs reached the same conclusion on the second and third grounds. It distinguished between “original vacancies,” i.e., “offices created by law, and not before filled,” and vacancies that “happen” during the recess of the Senate. The latter “evidently means vacancies occurring from death, resignation, promotion or removal; the word happen must have reference to some casualty not provided for by law.” The Committee also pointed out that the Senate was in session when the laws establishing the offices in question were passed, Thus, the President had no power to fill these offices under the RAC. 38 Annals of Cong. 489, 500 (1822).

The Committee contended that its position was supported not only by the language of the Constitution, but by practice and precedent:

The committee believe[s] this is the fair construction of the Constitution, and the one heretofore observed. For many instances have occurred where offices have been created by law, and special power was given the President to fill those offices in the recess of the Senate; and no instance has before occurred, within the knowledge of the committee, where the President has felt himself authorized to fill such vacancies, without special authority by law.

Id.

The Committee’s position depended partially, but not completely, on the notion that the President’s power under the RAC was limited to vacancies that occurred or arose while the Senate was in recess. As Professor Rappaport demonstrates in the above-referenced article, this was the dominant if not universal understanding of the RAC at the time.

In 1823, however, Attorney General William Wirt issued an opinion rejecting this position. Wirt addressed the question of filling a vacancy created as the result of the statutory expiration of the commission of the navy agent in New York. Although the vacancy arose while the Senate was in session, Wirt concluded that the President could fill the vacancy once the Senate was in recess. He begins with an analysis of the word “happen”:

The most natural sense of this term is “to chance”- to fall out- to take place by accident.” But the expression seems not perfectly clear. It may mean “happen to take place:” that is, “to originate:” under which sense, the President would not have the power to fill the vacancy. It may mean, also, without violence to the sense, “happen to exist;” under which sense, the President would have the right to fill it by his temporary commission. Which of these two senses is to be preferred? The first seems to me most accordant with the letter of the constitution; the second, most accordant with its reason and spirit.

1 Op. Atty Gen. 631 (1823) (italics in original).

Wirt gives a number of examples to show that the more literal interpretation of the RAC would be contrary to its reason and spirit. He starts with an example very similar to that offered by Senator Horsey in 1814- a vacancy occurs in a distant part of the country on the last day of the Senate’s session, but word does not reach the President until the Senate is in recess. A literal construction of the RAC would mean that the office could not be filled until the Senate’s next session “however ruinous the consequences to the public.”

Wirt then gives other examples of events that might prevent the Senate from performing its advice and consent function: “the sudden dissolution of that body by some convulsion of nature; the falling of the building in which they hold their sessions; a sudden and destructive pestilence, disabling or destroying a quorum of that body; such an invasion of the enemy as renders their reassemblage elsewhere impracticable or inexpedient; and a thousand other causes which cannot be foreseen.” He also suggest that a vacancy may “happen to exist” as the result of the Senate “rejecting a nomination by the President in the last hour of their session, and inadvertently rising before a renomination can be made.” (This last rather dubious example appears to be based on the actual circumstances Wirt was addressing).

Wirt’s conclusion that the RAC power reaches all vacancies that “happen to exist” during a Senate recess is itself ambiguous. It may be read to embrace all vacancies that simply exist during a recess. But the examples given by Wirt all involve some element of chance, accident or inadvertence. Thus, Wirt’s phrase “happen to exist” might be better read as “exist by happenstance.” See Edward Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 402 n. 110 (2005) (“Wirt’s view seems to reflect some sense that ‘happen’ involves an element of chance or fortuity.”).

It is also noteworthy that Wirt does not address or contradict the position taken by the Senate Committee on Military Affairs just the previous year that the RAC does not extend to a newly created office. Such an original vacancy does not “exist by happenstance” and therefore arguably would not fall within the rationale of Wirt’s opinion. Put another way, Wirt’s opinion contradicts only the second, but not the first or third, ground for concluding that original vacancies are outside the scope of the RAC.

Furthermore, it is difficult to see how the “reason and spirit” of the RAC requires that it apply to original vacancies. Unlike an unexpected vacancy in an existing office, an original vacancy should not disrupt government operations. Congress is obviously aware that a newly created office will start out vacant. If Congress wishes, it can delegate the power to fill the office temporarily. Alternatively, it may provide that an existing officer perform the functions of the new office until it is filled through advice and consent. But even if Congress chooses to leave the office entirely dormant until the advice and consent process is complete, there is little reason to fear the type of “ruinous consequences” Wirt was concerned about.

Whatever Wirt intended when he wrote his opinion, it seems clear that it did not change the Senate’s view with regard to original vacancies. As explained in the 1829 edition of Rawle’s constitutional treatise:

It would be improper to pass over the construction given by the senate to the power of appointing during their recess. It has been held by that venerable body, that if new offices are created by congress, the president cannot after the adjournment of the senate, make appointments to fill them. The vacancies do not happen during the recess of the senate.

 William Rawle, A View of the Constitution of the United States, ch. IVX (2d ed. 1829); see also 3 Joseph Story, Commentaries on the Constitution of the United States 416, 417 (3d ed. 1858).

Moreover, when the question of using the RAC to fill original vacancies was subsequently presented in the executive branch, then-Attorney General John Mason evidently did not consider Wirt’s opinion controlling, as he did not cite it in concluding that these vacancies could not be filled during the recess of the Senate. 4 Op. Atty Gen. 361, 365 (1845). Professor Hartnett observes that “Mason was addressing [only] the appointment of the officers to offices that had just been created, a question that involves whether the word ‘happen’ requires some casualty not provided for by law.” Hartnett, 26 Cardozo L. Rev. at 403 n.114.

Thus, the question of filling original vacancies under the RAC must be viewed as distinct from the general question of whether the President may fill vacancies that “happen to exist” during the recess. As a matter of constitutional text, purpose and interpretative practice, the rationale for filling original vacancies under the RAC would seem to be considerably weaker than the argument for using the Clause to fill vacancies in existing offices. The significance of this conclusion will be explored in future posts.

(5) To the maximum extent practicable, each committee shall— 
(A) provide audio and video coverage of each hearing or meeting for the transaction of business in a manner that allows the public to easily listen to and view the proceedings; and 
(B) maintain the recordings of such coverage in a manner that is easily accessible to the public.

Daniel Schuman of the Sunlight Foundation points out, however, that the Legislative Branch Subcommittee of the House Committee on Appropriations holds most of its hearings in a small hearing room in the Capitol (HT-2) that does not have a pre-positioned camera and apparently these proceedings have not typically been broadcast or recorded. Thus, for example, the public will not be able to view tomorrow’s hearing on the Library of Congress, the GAO, the Public Printer and the CBO.

As Schuman notes, it would be very “practicable” for the Appropriations Committee either to move the hearing to one of several available hearing rooms that have a camera or to request that the House Recording Studio provide one in HT-2. While admittedly tomorrow’s hearing is not exactly the half-time show at the Superbowl, the House Rules admit of no exception, even for “really boring” agencies.

When Congress returned, Senator Gore of Massachusetts introduced a resolution that declared Madison’s actions to be unconstitutional. The resolution began:

The President of the United States having by the Constitution 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.

RESOLVED, That, in the opinion of the Senate, no such vacancy can happen in any office not before full.

Gore’s argument focused on the words “which may happen” in the RAC. He acknowledged that a newly created office might be said to be “vacant” and that “[a] vacancy may be said to exist in such office, immediately after its creation.” However, “for a vacancy to happen at any time in an office, that office must have been full at some time previous to the period when it did happen; for a vacancy to happen during the recess of the Senate, the office must have been full during their session prior to, and at the commencement of their recess.” (emphasis added). Since the envoy positions given to Adams, Gallatin and Bayard had never been filled previously, no vacancy could have “happened” in these offices, and thus the RAC was not triggered.

Gore rested his argument not only on the plain language of the RAC, but on policy and precedent. With regard to the former, he noted that “[i]f an office had been created by law, or otherwise, and brought into existence during the session of the Senate, it would be only for the President to wait until their recess to commission a person to fill the vacant office . . . .” Moreover, the President might then keep the person if office indefinitely by re-appointing him when his commission expired at the end of the next session. (As Senator Bibb would point out later, however, the possibility of successive appointments, which Bibb characterized as an “abuse” of the RAC, existed regardless of whether the Clause applies to newly created offices).

With regard to precedent, Gore noted that “[m]ost offices are created by Congress” and “[t]he practice has been, in cases where there is reason to apprehend that sufficient time will not be afforded, during the session of the Senate, for a proper selection of persons to fill such offices, and that inconvenience might result from delay till their next session, to authorize the President to appoint such officers in the recess of the Senate.” This practice would not have been necessary, Gore noted, if the RAC already gave the President this power.

Two senators spoke against Gore’s resolution. Senator Bibb of Georgia expressed his personal view that the “true interpretation” of the RAC was “that the Executive may fill all offices which from whatever causes happen to be vacant or unoccupied during the recess of the Senate, without regard to the precise period when they became so.” Perhaps recognizing that this was an idiosyncratic view, Bibb did not offer it as a justification for Madison’s use of the RAC, instead accepting for purposes of the argument that “the President is not authorized to fill vacancies unless they happen during the recess of the Senate.”

In the case at hand, however, Bibb stressed that the offices were not created by statute, but were diplomatic offices of a type established by the President as part of his control over foreign affairs. The creation of such offices would generally depend on “accidental circumstances,” as had been the case with regard to Madison’s appointment of the three envoys. Since “[t]he mediation of Russia was proposed during the recess” and Madison responded by appointing the envoys during the same recess, the vacancies had clearly “happened during the recess” within the meaning of the RAC.

Senator Horsey of Delaware also spoke against Gore’s resolution. Unlike Bibb, Horsey acknowledged that the letter of the RAC limited it to vacancies that first arose during the recess of the Senate. Like Bibb, he stressed that the creation of a diplomatic office depends on events, and if those events occur during the recess of the Senate, as they had in the case of the three envoys, the President was authorized to make temporary appointments under the RAC.

Horsey also expressed reservations about a literal application of the RAC in all cases. He gave the hypothetical where the Collector of the port of New Orleans died near the end of the session, but word of the death did not reach Washington before the Senate adjourned. If this were to leave the government with not options other than either to re-convene the Senate or to leave a critical office vacant for an extended period of time, it would cause great expense, disruption and inconvenience all around.

So what can we learn from the debate on Gore’s resolution (on which the Senate ultimately took no action)? First, there were some key points on which all three senators agreed. They all acknowledged that Congress had frequently enacted statutes which authorized the President to make temporary appointments in cases where the RAC clearly or arguably did not apply, and none of them questioned the propriety of this practice. Bibb expressly acknowledged that it was “necessary” for Congress to provide such authority in the case of offices newly created during the session, although it is somewhat difficult to square this statement with his “true interpretation” of the RAC.

The point of disagreement was that Gore wanted to insist on a strict and literal application of the RAC, while Bibb and Horsey believed that there was a tension between the literal terms of the RAC and its intended (or assumed) purpose. To resolve this tension, they were willing to allow the President some discretion in determining whether a vacancy had “happened” in the recess of the Senate. In concluding that Madison had properly exercised that discretion, both stressed the role of accidental circumstances in causing the appointments of the envoys during the recess.

Bibb and Horsey also stressed the limited nature of the President’s authority. Bibb explained that the President’s RAC power was “under the strictest guards or checks” in that “it can only be exercised in the recess of the Senate” and “the commission creating the appointment shall expire at the end of the next session of the Senate.” Similarly, Horsey stated that the checks on the President’s power were “abundantly sufficient” because “[t]he commissions granted continue no longer than the end of the next session of the Senate, and in the meantime the Senate may reject the nominations.” It seems clear that both senators would have rejected successive appointments as, at best, an abuse of the RAC.

IMHO, this relatively obscure debate provides some important context to understand more contemporary developments in the interpretation of the RAC. And by “more contemporary” I mean the 1820s. More on which coming up.

The Constitution requires that Congress “assemble” at least once a year. Under the 20^th Amendment, Congress assembles on January 3, unless a different day is established by law. This begins a “session” of Congress, which lasts until it adjourns sine die or until the session expires automatically by the commencement of a new session in the next year. Normally Congress holds one session per year; thus, one would typically refer to a bill or report as having occurred in either the First or Second Session of a particular Congress (eg, 110^th Congress, 2d Sess.). However, nothing prohibits holding more than one session per year, and on occasion there have been Congresses that have held more than two sessions (indeed, the first Congress held three sessions).

According to the January 3, 2012 Congressional Daily Digest: “The Senate met in pro forma session to convene the second session of the 112th Congress at 12:01:32 p.m., and adjourned at 12:02:13 p.m. until 11 a.m., on Friday, January 6, 2012.” So after “assembling” for nearly a full second [Update: as an observant reader points out, that should be nearly a full minute- 41 seconds in fact], the Senate adjourned for 2 days, 22 hours, 59 minutes, and 57.87 seconds. (Hope you are taking notes- this could be on the exam).

On January 4, President Obama made four appointments pursuant to the Recess Appointments Clause. Three of them were to the National Labor Relations Board (NLRB), and one was the director of the new Consumer Financial Protection Bureau (CFPB).

Depending on whom you ask, these actions were clearly constitutional, clearly unconstitutional, or somewhere in between. Most commentators have focused on the question of whether the Senate was in “recess” at the time the appointments were made. Sometimes this question gets confused with whether the Senate was “adjourned” or “in session,” but these questions are more easily answered. The Senate was certainly adjourned on January 4 (then, again, the Senate is adjourned for at least part of virtually every day). Whether the Senate was “in session” depends on whether one is using this phrase as simply the converse of being adjourned (as it often colloquially used) or whether one is asking if January 4 was “during the Session of Congress” (the phrase used in Article I, section 5, cl. 4). If one means the former, the answer is no; if the latter, the answer is yes because the second session of the 112^th Congress convened on January 3.

But is the question of whether the Senate is in “recess” the same as any of these questions? Unfortunately, the Constitution does not clearly define what constitutes a “recess,” a term that it uses only twice. Apart from the RAC, the Constitution refers to a “recess” only in the Senate Vacancies Clause, which states “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.”

Some constitutional lawyers argue, quite reasonably, that the “recess” referred to by the RAC must refer to the period between sessions of the Senate; this conclusion gains some support from the usage in the RAC (the juxtaposition of “the Recess” and “their next Session”), but it is primarily based on the Framers’ expectations of how Congress would operate.

At the time the Constitution was written, a “session” of Congress (or the Senate) would have been understood as a natural event. The Framers expected that Congress would “assemble” at a particular location for a period of time, during which it would accomplish whatever business it needed to accomplish, and then it would go home. Of course, they understood that there would be routine day to day adjournments, but the realities of 18^th Century transportation would make it impractical for most Members of Congress to return to their homes until Congress had completed its work. Thus, the Framers had no reason to expect that there would be intrasession adjournments of any significant length.

Note that this observation does not tell us whether the literal meaning of the term “recess,” in the late 18^th Century, encompassed intrasession adjournments. Nor does it necessarily mean that the Framers specifically intended to exclude intrasession adjournments from the RAC. It simply means that the intersession recess, ie, the period between sessions of Congress, was likely the only “recess” that had any salience for the Framers.

By the early 20^th century, however, congressional practice had changed. Instead of taking one long intersession recess, Congress would periodically adjourn for several weeks or more during the session; although there was still typically a substantial intersession recess, this was no longer invariable practice and in some years there was no break between sessions at all. This raised questions as to when the President could use his power under the RAC. Initially the executive branch took the position that the RAC only applied to intersession recesses, but that the moment of transition between congressional sessions, even if it was just a few seconds, constituted a “recess” for purposes of the RAC.

In 1921, however, Attorney General Daugherty rejected the distinction between intersession and intrasession recesses and concluded that the existence of a “recess” should be determined by considerations such as the following: “Is the adjournment of such duration that the members of the Senate owe no duty of attendance? Is its chamber empty? Is the Senate absent so that it can not receive communications from the President or participate as a body in making appointments?” Acknowledging that the “line of demarcation cannot be accurately drawn,” Daugherty stated that the President “is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate.” In Daugherty’s judgment, an adjournment of 5 or even 10 days would be too short to qualify as a recess.

The executive branch has followed Daugherty’s opinion ever since, but its lack of a bright-line test has proved to be something of an embarrassment. Perhaps it was thought that “the President will know a recess when he sees it” was not the best message to communicate to the legislative or judicial branches. Accordingly, executive branch lawyers have suggested from time to time that there is an irreducible minimum below which an adjournment will not constitute a “recess” within the meaning of the RAC. They have located this minimum in Article I, §5, cl. 4, which provides that “Neither House, during the Session of Congress shall, without the Consent of the other, adjourn for more than three days.”

It has been suggested that there is no logical connection between the three-day adjournment provision and the definition of a “recess” for purposes of the RAC. There is considerable merit to that criticism, but one can at least appreciate the internal logic of the executive branch’s position. If one starts with the proposition that the Daugherty opinion is correct in concluding that some, but not all, intrasession adjournments are “recesses” within the meaning of the RAC, the three-day adjournment provision looks like a plausible demarcation of the line between routine day-to-day adjournments of the kind that the Framers could not possibly have intended to be “recesses” under the RAC and more extraordinary adjournments that are at least candidates for the President’s exercise of discretion. Certainly it seems like a better line of demarcation than Harry Daugherty’s gut feeling that 5 or 10 days are too short to be a recess.

The only justification for the three-day rule, however, is the perceived need for a formal and objective line of demarcation between routine adjournments and those that might amount to “recesses.” If the President retains the discretion to declare that an adjournment of three days or less is a “recess” under some circumstances, the plausibility of the three-day rule fades considerably. This is particularly true if an adjournment can simultaneously be less than three days for purposes of determining whether consent of the two houses is needed and more than three days for purposes of adjudging it a recess under the RAC.

You may recall that the Senate’s adjournment from January 3 to January 6 was 1 hour and 2.13 seconds less than three days. (How curious it is!  What a bizarre coincidence!) Yet the President determined that the Senate was in recess for purposes of exercising his authority under the RAC. One might ask how that could be, unless the executive branch is jettisoning the three-day rule for purposes of the RAC.

That’s a good question. But before we get to that question, maybe we should ask a different one. The RAC provides that the President has power to fill “all Vacancies that may happen during the Recess of the Senate.” Even if January 4 was during the recess of the Senate, did the vacancies in question “happen” during that recess? For that matter, did the vacancies “happen” at all?

I will turn to those questions in my next posts.

This raises an interesting question under the Arrest Clause, art. I, § 6, cl. 1, which provides that Senators and Representatives “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their respective Houses, and in going to and returning from the same.“

For these purposes, I believe that the Senate has been in session since January 3 (notwithstanding some debate about its status for purposes of the Recess Appointments Clause) and, in any event, the Senate apparently is holding votes this afternoon (so Senator Paul alternatively would be “going to” the Senate’s session). However, as we have discussed before (see here and here), the exceptions to the privilege against arrest have been construed so broadly as to leave it with no application to ordinary criminal arrest. Since the practice of arresting people in civil cases no longer exists, this leaves the privilege with little practical import.

In this case, however, it does not appear that TSA was purporting to detain Senator Paul for any criminal violation.  Indeed, it is not clear that TSA had any authority to detain him at all (which is perhaps why TSA is denying that he was detained). I don’t think that the Arrest Clause requires TSA to allow Members of Congress to board airplanes without complying with security regulations. But if TSA agents otherwise sought to prevent Senator Paul from leaving the airport or otherwise to detain him, that may be a different matter.

Congress routinely asks executive officials outside the White House to testify about their decisions. It occasionally subpoenas them to compel attendance, and arrest would be a last resort.  It’s unclear why applying the same rules to the judicial branch threatens the separation of powers, especially if done in the context of considering judicial reform proposals like Mr. Gingrich’s.  Subpoenaing Justices of the Supreme Court, the only court created by the Constitution, is a possible exception.

So let’s take a closer look at this aspect of Gingrich’s plan and see whether it is in fact as radical as critics have suggested.

It is true that federal judges can and do testify before Congress. For example, they testify on administrative and budgetary matters such as staffing and funding, the use of courthouse space, and proposed legislation that would impact the operation of the judiciary. Even Supreme Court Justices occasionally testify before Congress, as this past October when Justices Scalia and Breyer appeared before the Senate Judiciary Committee at a hearing entitled “Considering the Role of Judges Under the Constitution of the United States”, a hearing at which they expressed their views on a wide range of topics, including cameras in the courtroom (they are against them).

The appearances and testimony in these situations have always been voluntary. In many cases the judges have an interest in testifying because they want to influence Congress on the matters in question. In theory, however, one could imagine a situation where Congress would have legitimate grounds to subpoena a federal judge to testify about these types of routine oversight matters. Suppose, for example, Congress was considering judicial pay-raises and learned that there were some judges who disagreed with the Judicial Conference’s official position that salaries should be increased. While considerations of comity might well militate against compelling these judges to appear, I can see no persuasive constitutional objection if Congress chose to subpoena them.

A more difficult situation arises when Congress investigates particular cases of what be called judicial “maladministration.” These would be instances of judicial conduct that fall outside the core judicial function of deciding cases and controversies. A good example arose about 10 years ago, when Chief Judge Norma Holloway Johnson of the D.C. District Court was alleged to have improperly assigned certain sensitive political cases outside of the normal random assignment system. The allegation came to the attention of a couple of congressional committees, and Chairman Burton of the House Government Reform Committee invited Chief Judge Johnson to appear before the committee to address the matter.

Judge Johnson declined, citing separation of powers concerns and drawing an analogy to judicial decisions that declined, on separation of powers grounds, to scrutinize internal management decisions by Congress. Chairman Burton rejected this analogy, pointing out that while the courts have no general oversight over congressional rules, Congress does have the power to establish judicial rules of procedure, and the concomitant duty to oversee their operation.

Burton’s position was a fairly strong one. Johnson’s alleged misconduct, while not amounting to an impeachable offense, was clearly relevant to the operation of the random assignment system, which was a proper matter for congressional oversight. Moreover, because the committee was investigating an administrative matter, rather than a judicial decision, concerns about any impact on judicial independence were substantially attenuated. Nevertheless, Chairman Burton, hardly a shrinking violet when it came to exercise of the congressional investigative authority, chose not to move forward with subpoenaing Johnson.

As these examples illustrate, there is nothing unusual or improper about inviting federal judges to testify before Congress on a wide variety of matters that impact their official functions. Moreover, there is a plausible argument that federal judges could be subpoenaed to testify on such matters in the appropriate circumstances. As Levey suggests, it would be entirely appropriate for federal judges to be asked, and possibly even compelled, to give their views on significant judicial reform proposals.

It bears repeating, however, that issuances of congressional subpoenas to federal judges for any reason are extremely rare and, as noted by this CRS report, “[i]t does not appear that the House has ever enforced a subpoena against a sitting federal judge.” In a 2006 case, Sullivan v. McDonald, a Connecticut state judge observed that “[i]t appears to the court that there have only been two prior instances, in the history of the country, in which a legislative body has ever attempted to subpoena a judge.” One was the 1953 case that led to the Statement of the Judges cited in my prior post. The other, also in 1953, involved a HUAC subpoena to U.S. Supreme Court Justice Tom C. Clark (who declined to appear on separation of powers grounds).

The Connecticut case is analogous to the Johnson matter in that it involved a state legislative subpoena to a justice of the Connecticut Supreme Court regarding an administrative matter, namely the timing of a decision to release to the public a particular court opinion. The court granted a motion to quash the subpoena, finding that it could not countenance, outside the context of impeachment, “unbridled power in any legislative committee to compel the attendance of sitting judicial officers.” Nevertheless, the court encouraged voluntary compliance with the legislature’s legitimate informational needs, and the justice ultimately testified voluntarily, mooting the case.

More importantly for current purposes, however, Gingrich is not proposing that federal judges be subpoenaed to discuss either administrative matters or questions of judicial reform or reorganization. Instead, he is advocating that judges be subpoenaed for “judicial accountability hearings” in which “congressional committees [would] express their displeasure with certain judicial decisions” and require the federal judges before them to “explain their constitutional reasoning” with regard to those decisions. In short, he is advocating congressional action to pressure federal judges on particular decisions that, in the view of one or more committees, are “radically wrong.”

Up until now, the debate over whether federal judges could be held “accountable” for their judicial decisions has largely centered on impeachment. The late Chief Justice Rehnquist contended that early impeachment cases, most notably the failed impeachment of Samuel Chase, established the “precedent” that “impeachment should not be used to remove a judge for conduct in the exercise of his judicial duties.” In other words, Rehnquist believed that judges could not be impeached simply for their judicial decisions, no matter how “radically wrong” they might be.

Clearly Gingrich disagrees with Rehnquist on this point as his position paper asserts “judges who issue unconstitutional decisions or who otherwise ignore the Constitution and the legitimate powers of the other two other co-equal branches of the federal government can be subjected to impeachment.” And it is certainly true that, as a matter of raw political power, Congress could impeach federal judges for their judicial decisions. However, as Professor Charles Geyh observes in his 2006 book, When Courts & Congress Collide, the existence of such power is not the end of the analysis:

Congress has interpreted the Constitution for itself and has concluded that there are constraints on its authority to characterize various offenses as impeachable. Congress could impeach and remove a judge for simple decision-making errors, but it never has. It could infer a bad motive from the erroneous decision itself, but it never has. It could establish itself as an all-powerful forum for judicial review, but it never has.

What is really fascinating here, though, is that Gingrich is not merely arguing that impeachment could or should be used for judges who issue radically erroneous decisions. The “judicial accountability hearings” he advocates are in addition to any possibility of impeachment. Thus, a House committee could hold a judicial accountability hearing even if there were no impeachment proceedings against the judge and a Senate committee could hold such a hearing even though the judge had not been impeached by the House.

In short, it seems clear that Gingrich is advocating that judges be subpoenaed, not for purposes of gathering information for impeachment or any other legislative purpose, but simply to “express displeasure” with the judge’s decision. The sole objective appears to be to deter judges from issuing decisions that the political branches find abhorrent (as Gingrich explained, it would have a “sobering effect” if judges “knew that when they were radically wrong they’d be hauled in front of Congress”).

As in other areas of constitutional law, there is plenty of room for argument about the proper relationship between Congress and the courts, and about what recourse the political branches have when the courts issue decisions that the former find to be intolerable. But as far as I know, the notion of subpoenaing judges for the sole purpose of badgering them about improper decisions is a wholly new one, which lacks any apparent connection to a function given to Congress under the Constitution.

Perhaps Levey thinks this is ok. Perhaps he thinks that Congress should be able to subpoena federal judges to question them not only about administrative matters or judicial reform proposals, but about their “constitutional reasoning” in particular cases. Perhaps he thinks that calling judges before Congress to influence their judicial opinions is no different than using congressional hearings to lobby or pressure executive branch officials on the wide variety of decisions that they make.

But I seriously doubt it.