Constitutional Settlement through a Senate Rule

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.

Taking the Recess out of Recess Appointments

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.


CRS on Pro Forma Sessions

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.

House Rules on Employment Negotiations and Recusal: the Case of Representative Cardoza

Representative Cardoza of California announced earlier this week that he would be resigning from Congress and joining the law firm of Manatt Phelps. Manatt apparently jumped the gun a bit and listed Cardoza yesterday on its website as a managing director in its public policy practice, even though Cardoza had not actually resigned yet, according to this Politico article. (Manatt subsequently removed the listing). Politico says that Cardoza was going to submit a letter of resignation effective midnight yesterday, although the Clerk still has him as a Member of the House as of this afternoon.

So that’s a little gauche, but were any laws or rules violated? There is no prohibition on former Members of Congress going to work for lobbying firms, although the post-employment law forbids them from lobbying the legislative branch for a period of one year after they leave office. Nevertheless, there are many things that they can do even during this one-year “cooling off period.” As explained in this House Ethics Committee memorandum, a former Member may immediately “aid or advise clients (other than foreign governments or foreign political parties) concerning how to lobby Congress, provided the former Member makes no appearance before or communications to Members or employees of Congress.” The former Member can also lobby the executive branch and state governments during this period.

We have previously discussed whether it is appropriate for Members of Congress to resign for personal convenience and concluded that while perhaps there should be a norm/rule against this, it is not currently prohibited.

So that leaves the question of whether Cardoza properly complied with House Rules regarding employment negotiations and recusal. As explained in the Ethics Committee memorandum, “Members must notify the Committee within three (3) business days after they commence any negotiation or agreement for future employment or compensation with a private entity.” The definition of what constitutes a negotiation is somewhat vague, but this doesn’t matter much for our purposes, since we don’t know what communications Cardoza had with Manatt or when they occurred.

What we do know is that Cardoza filed a Notification of Negotiations or Agreement for Future Employment Form with the Committee on July 30. The form indicates that the negotiations began that same day, July 30, which I suppose is possible. I would note, however, that Cardoza’s last vote in the House appears to have been on July 25 (Roll Call Vote 518). He did not vote in any of 38 roll call votes that the House took on July 26, July 31, August 1 or August 2.

Of course, we don’t know why Cardoza missed these votes, but it seems like a reasonable surmise that participating in some or all of these votes would have raised ethical questions. The Committee advises that “Members are strongly encouraged to abstain from voting on legislation that provides a benefit targeted to any entity with which the Member is negotiating or from which the Member has accepted future employment.” Presumably, the Committee would look askance at a Member voting with respect to legislation on which his prospective future employer was lobbying. Given the breadth of Manatt’s lobbying practice, it might have been difficult for Cardoza to determine which legislation he shouldn’t vote on, and he may have decided that the prudent thing to do was to stop voting on everything.

If this was the case, Cardoza was required to notify the Ethics Committee of his recusal, and also to provide the Clerk with a copy of his prior Notification of Negotiations form so that the Clerk can make that document public. It does not appear that Cardoza did this because the Clerk never made the notification form public. Thus, there may have been technical non-compliance with this requirement.

All in all, however, if it is true that Cardoza did not begin his negotiations with Manatt until July 30 or shortly before, it seems to me that he complied with the spirit, if not the letter, of the House rules on employment negotiations and recusal.




The Pay Act and the GAO as a Means of Constitutional Settlement

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”

Can the Chairman of the House Budget Committee Preside Over the Senate?

Update: Professor Tillman responds in the comments

Professor Seth Barrett Tillman emails to remind us (among others, see Election Law Blog and the Originalism Blog) of his theory that the President and Vice-President do not hold “offices under the United States” within the meaning of the Incompatibility Clause, and thus that there is no constitutional prohibition on being President/Vice-President and a Member of Congress at the same time.

Just as he argued in 2008 that then-Senators Obama and Biden could remain in the Senate while assuming the presidency and vice-presidency respectively, he believes that Representative Paul Ryan could keep his seat in the House even if he becomes Vice-President.

I have three observations on the subject. First, technically I think that Tillman is correct in saying that Ryan could assume his seat in the 113th Congress even if he is elected as Vice-President. This is so because the Congress will be seated on January 3, 2013, while the Vice-President will not be sworn it until January 20. Until he is sworn in, Ryan does not have an Incompatibility Clause problem.

Second, although there is a Wisconsin statute that declares that if a candidate is “elected president or vice president of the United States such election shall void the candidate’s election to any other office,” this statute is probably unconstitutional as applied to election to Congress. Since Ryan has the constitutional qualifications to be a member of the House unless and until he becomes Vice President, the Wisconsin statute should not prevent him from receiving a certificate of election and being seated on January 3. Of course, it might be difficult to convince the Wisconsin official responsible for issuing the certificate of election (presumably the Secretary of State) of this.

Third, once January 20 rolls around, Ryan will have to decide whether he would rather be Vice-President or a Member of the House. This is so because (1) I think Tillman is wrong that the Incompatibility Clause allows Ryan to serve as Vice-President and as a Member of Congress at the same time; (2) I am quite sure that the House would think that he is wrong; and (3) even if the House were persuaded that Tillman is right, it would still exclude Ryan on the grounds that the duties of the Vice President are “absolutely inconsistent” with those of a Member of Congress (as it has done in the case of Members elected to state offices such as the governorship- see 6 Cannon’s Precedents § 65).

So I guess the question for Ryan would be: is a seat in the House worth less than a bucket of warm spit?


Tillman’s prior writings on the subject may be found below:


Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134 (2008), appearing at


Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107 (2009), available at


Saikrishna Bangalore Prakash, Response, Why the Incompatibility Clause Applies to the Office of President,                                4 Duke J. Const. L. & Pub. Pol’y 143 (2009), available at “



Common Cause’s Impossible Dream

When Common Cause filed this lawsuit challenging the constitutionality of the filibuster, the legal establishment scoffed. Critics called it “ridiculous,” “specious,” and “frivolous.” They said the courts would toss the case on jurisdictional grounds without reaching the merits. They said a rag tag bunch of public interest lawyers, Democratic House Members and illegal aliens stood no chance against the world’s greatest deliberative body. (Ok, I might have made up that last part).

But as much as we like a good David versus Goliath story, I would bet on Goliath here. Apart from the merits of any constitutional objection to the filibuster (or lack thereof, as I have argued here and here; see also Ed Whelan’s comments), the Common Cause lawsuit suffers from three fundamental defects: (1) the lack of plaintiffs with legally cognizable injuries, (2) the absence of defendants to whom the alleged injuries could be attributed, and (3) the inability of a federal court to redress the alleged injuries even if proper defendants were before it.

Continue reading “Common Cause’s Impossible Dream”

Privileged Communications in Congressional Investigations

Michael Bopp and DeLisa Lay of Gibson Dunn have recently published an article, “The Availability of Common Law Privilege for Witnesses in Congressional Investigations” in the Harvard Journal of Law & Public Policy. It provides a helpful overview of congressional authority and practice with regard to assertions of attorney-client and other common law privileges in congressional investigations.

The article also focuses on a more unusual topic: the extent to which communications by lawyers and others involved in representing private parties in congressional investigations or other proceedings will themselves be protected by privilege. In other words, if a company hires lawyers, lobbyists or media consultants to represent it in connection with a congressional investigation, will it be able to claim privilege over its communications with these professionals, if for example they should be sought by adversaries in a future civil or criminal proceeding?

Not surprisingly, the answer turns out to be complicated. But it got me to wondering whether congressional committees could bolster future claims of privilege by, for example, allowing attorneys for congressional witnesses to “enter an appearance” in an investigation. In exchange for counsel adhering to certain ground rules established by the committee (eg, counsel could be required to acknowledge that the committee is a “tribunal” within the meaning of the legal ethics rules), it could recognize the privileged nature of the representation, which might (or might not) have an influence on courts or other tribunals considering future claims of privilege.

Does anyone know of committees doing this or something similar?

Recess Appointment Litigation 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”