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.


At the outset, we should put these legal challenges in the context of the long-running debate over what constitutes a “recess” within the meaning of the RAC. Attorney General Daugherty, you may recall, adopted a “practical” construction of the RAC focusing on “the broad and underlying purpose of the Constitution [which] is to prohibit the President from making appointments without the advice and consent of the Senate whenever that body is in session so that its advice and consent can be obtained.” Accordingly, Daugherty found the “real question” in determining the existence of a recess to be “whether in a practical sense the Senate is in session so that its advice and consent can be obtained.” (emphasis in original).

Following this reasoning, the Office of Legal Counsel, in its January 6, 2012 opinion, maintains that the “pro forma sessions” held by the Senate between January 3 and January 23, 2012 did not cause the Senate to be in session so that its advice and consent could be obtained. The key premise on which OLC bases this conclusion is that the Senate determines in advance that no business shall be conducted at these pro forma sessions. In a practical sense, therefore, the Senate is not really available to give its advice and consent during these pro forma sessions.

This argument is not without force, and I was originally leaning toward accepting it. Further reflection, however, convinces me that it is probably wrong.

At the outset, it is debatable whether these pro forma sessions are substantively more like a normal session or a normal recess. Consider, for example, the debate over adjournment that took place in 1812. Recall that many members of Congress wanted a multi-week adjournment that would allow at least some of them to return home. From Daugherty’s practical perspective, such an adjournment would have clearly been a “recess” (and indeed members used that term to refer to it).

Senator Bibb, however, objected to the proposed adjournment on the ground that Congress needed to be available in case action was needed earlier: “If gentlemen desired relaxation, [he] said, he was content to sit but twice a week. But, what he desired was, that a quorum of both Houses should be within call of their presiding officers, ready to receive Executive communications and act whenever it should be necessary.”

Pro forma sessions, it may be argued, are simply modern versions of what Bibb proposed. Although Congress does not expect to conduct business at such sessions, it retains the ability to do so “whenever it should be necessary.” The best evidence of this, as stressed by the plaintiffs in both the Noel Canning and State National Bank cases, is that Congress did in fact pass a significant piece of legislation during a pro forma session on December 23, 2011.

Furthermore, OLC’s position conflicts with Article I, § 5, cl. 4 (the Adjournment Clause), which prohibits either House, during the session of Congress, from adjourning for more than three days without the consent of the other.  Because the House had not consented to any Senate adjournment in December 2011 or January 2012, the Senate was constitutionally prohibited from adjourning for more than three days during this period.

OLC offers three reasons why the Adjournment Clause “provides only weak support” for the argument that the pro forma sessions prevent the President from making recess appointments. First, it raises the possibility that the pro forma sessions may be insufficient to comply with the Senate’s obligations under the Adjournment Clause. However, it offers no affirmative argument for that proposition, and it acknowledges “at least a limited tradition of a House of Congress using consecutive pro forma sessions to avoid adjournments of more than three days without obtaining the other House’s consent.” In light of this tradition and each house’s constitutional authority to determine the rules of its proceedings, it is difficult to see on what basis a court could rule that the Senate violated its obligations under the Adjournment Clause.

Second, OLC argues that even if pro forma sessions are constitutional under the Adjournment Clause, “it does not follow that pro forma sessions may be used to prevent the President from exercising his constitutional authority to make recess appointments when he determines that the Senate is unavailable to provide advice and consent.” In other words, it suggest that the Senate may be “in session” for one constitutional purpose and “in recess” for another.

This argument makes little sense. The Adjournment Clause is not a meaningless housekeeping measure, but is designed to ensure that neither house may, by its unilateral adjournment, prevent the completion of legislative business. Thus, each house must remain available to conduct legislative business, precisely the same test as OLC uses to determine if the Senate is in session for purposes of the RAC.

To be sure, nothing in the Constitution requires the Senate (or the House) to do anything while it is in session. It is not required to hold debates or votes. It is not prohibited from adopting rules that make it extremely difficult to proceed to final passage of any measure. It is not even required to make enough Senators show up so that business can be conducted. A majority is required to conduct business, but Article I provides that a “smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.” This would seem to leave it up to each house to determine when and if a quorum should be compelled to appear.

It seems clear that the Senate remains available, during pro forma sessions, to conduct business under some circumstances (i.e., with unanimous consent). It is possible that it could do so under other circumstances (e.g., if a certain number of Senators were to show up). Regardless, it is hard to see why the test of availability should be different depending on whether one is considering the Adjournment Clause or the RAC.

Note that this analysis holds even if one assumes, as OLC presumably does, that the House has no legitimate interest in requiring the Senate to remain in session for purposes of conducting executive business such as ratifying treaties and confirming nominees. If this assumption were wrong (I don’t have a strong feeling one way or the other), it would be particularly problematic to allow the Senate to defeat the House’s interest by failing to remain in session for that purpose. As a practical matter, however, the Senate is equally available for legislative and executive business during pro forma sessions; even if the House’s legitimate interests only extend to the former, the Senate is still available to conduct the latter.

OLC’s attempt to separate the Adjournment Clause and the RAC also is in tension with the executive branch’s previous declarations on the subject. The 1921 Daugherty opinion itself draws the connection: “Under the Constitution neither house can adjourn for more than three days without the consent of the other. . . .  And looking at the matter from a practical standpoint, no one, I venture to say, would for a moment contend that the Senate is not in session when an adjournment of [that duration] is taken.” In recent years, the Justice Department and OLC have intermittently suggested that adjournments of three days or less do not qualify as “recesses” within the meaning of the RAC, although the OLC opinion notes that it “has not formally concluded that there is a lower limit to the duration of a recess within which the President can make a recess appointment.”

Theoretically, it would be possible to argue that the RAC borrows the quantitative standard of the Adjournment Clause (i.e., three days), but embodies a different qualitative standard for determining when the Senate is in session. To say the least, however, this seems counter-intuitive and tends to undermine the coherence of the executive branch position.

This leaves OLC’s last argument, which focuses on who decides whether or not the Senate is in session. The use of pro forma sessions to satisfy the Adjournment Clause or for other “housekeeping purposes,” OLC maintains, is purely an internal legislative matter, while the determination of a recess for purposes of the RAC affects the executive branch and must be made by the President.

I have two observations about this argument. First, I am not sure it is accurate to say that the Adjournment Clause is purely an internal legislative matter. The interests of the executive branch are affected by whether the Congress is in session for legislative purposes, and this is why the President has two related powers: (1) to adjourn Congress in the event of a disagreement between the two houses as to the time of adjournment and (2) to convene Congress, or either house, when they are not in session.

Second, while it is true that the President must decide if there is a Senate recess in order to exercise his power under the RAC, this does not mean that he has unlimited discretion to declare a recess under any circumstances. Daugherty declared 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” (emphasis added). If the President’s exercise of discretion is not subject to the requirement that there be an adjournment agreed to by both houses under the Adjournment Clause, it is hard to see any meaningful limits on the President’s discretion.

The OLC opinion states that “[t]he Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being able to receive and act on nominations.” But what does this assurance mean? Obviously it would mean little if Senators were required to remain on the floor 24/7. And it is not clear even that would satisfy OLC. After all, if the Senate were debating a legislative measure, one might argue it was “unavailable” to act on nominations until the debate ended.

Although Daugherty’s opinion permits the President to make a qualitative judgment about the Senate’s availability to act on nominations, it does so only in the context of an adjournment taken by congressional agreement under the Adjournment Clause. Absent this trigger, the President would have virtually unlimited discretion to find a recess at any time. There are many periods, even during “normal” session, when the Senate’s rules, schedule and practice make it highly unlikely that it will act on nominations. For example, one could argue the Senate is currently unavailable to consider certain nominations due to the operation of the “Thurmond Rule” (or, if you prefer, the “Leahy Rule”).

In the final analysis, the theory propounded by OLC in its January 6, 2012 opinion, although not without foundation in the “practical approach” to the RAC long advocated by the executive branch, must fail even under that approach.

Duration of Appointments 

Assuming for the moment that the courts decline to invalidate the January 4, 2012 recess appointments, when do the commissions received by the recess appointees expire? This issue has not yet been raised in the ongoing litigation, but could become important, particularly if the cases drag on into next year.

In my view, if the Senate was in recess on January 4, its “next session” began when that recess ended (presumably on January 23) and the commissions expire at the end of that session, which would be no later than January 3, 2013. I have given my general reasons for this conclusion in prior posts (see here, here and here). Today I would like to focus on some points specifically relating to the January 4 recess appointments.

If a court were to accept OLC’s position that the Senate can go into recess unilaterally, without the consent of the House, it would seem to follow that a Senate “recess” is different than a congressional “recess.” By parity of reasoning, one would think that a congressional session is also distinct from a Senate session. There would be little reason, therefore, to conflate the “next session” of the Senate with the next annual meeting of the Congress.

You may recall that Professor Hartnett justified the multi-session recess appointment theory on the grounds that the congressional session and recess are distinctly controlled: “The two houses of Congress can control when they are in recess by concurrent resolution, but they must act ‘by law’ to exercise control over their sessions.” But if the Senate can control its recess independently of the House, there is no textual or structural reason to conclude that it cannot exercise the same control over its sessions. Thus, if the Senate was in recess during the time that it was conducting pro forma sessions, its return from that recess should begin a new Senate session for purposes of the RAC.

Furthermore, if pro forma sessions are to be disregarded in favor of the “practical reality” that the Senate is unavailable to give it advice and consent, it follows that the Senate was in recess from December 17, 2011, when the Senate agreed to adjourn and convene for pro forma sessions only, until January 23, 2012, when it resumed “regular” sessions. AS OLC notes, “[t]his period of time, a total of thirty-seven days, in substance closely resembles a lengthy intersession recess.” (emphasis added).

Nevertheless, OLC would apparently disregard the “substance” of the matter and treat the January 4 appointments as “intrasession” on the theory that a new congressional session began on January 3, in accordance with the Twentieth Amendment. To reach that conclusion, of course, one would have to give effect to the pro forma session held by the Senate (and House) on January 3. Disregarding the pro forma sessions for purposes of enhancing the President’s power to make recess appointments while relying on them to extend the duration of those appointments strikes me as an extreme example of having one’s cake and eating it too.

There is one final reason why the January 4 recess appointments cannot extend beyond January 3, 2013. It is undisputed that, if Obama had made the recess appointments any time prior to noon on January 3, 2012, the commissions would have expired no later than January 3, 2013. If delaying the appointments for a few hours or days had the effect of extending the commissions for an additional year, one would have to conclude that the President engaged in precisely the type of abuse of the RAC that Attorneys General have foresworn since the Monroe administration. In other words, one cannot find that these commissions last beyond January 3, 2013 “without imputing to the President a degree of turpitude entirely inconsistent with the character which his office implies,” to borrow a phrase from Attorney General Wirt.

Litigation as a Means of Constitutional Settlement 

For the reasons indicated earlier, I think that the legal challenges to Obama’s January 4, 2012 recess appointments should succeed on the merits. This does not mean, however, that they will succeed.

The issues involved are novel and complex. There are reasonable arguments that can be made in support of the executive branch position. And there is no judicial authority to provide a roadmap for overturning these recess appointments.

Moreover, what judicial precedent exists in this area bespeaks a reluctance to invalidate recess appointments. See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en banc); United States v. Woodley, 751 F.2d 1008 (9th Cir. 1984) (en banc); United States v. Alloco, 305 F.2d 704 (2d Cir. 1962). As a rule, courts do not like to get involved in disputes between the political branches, nor do they care to disrupt highly complex statutory schemes. Cf. NFIB v. Sebellius, 567 U.S. ___ (2012) (insert your own parenthetical). In short, there is an institutional bias toward preserving the status quo.

In addition, courts are more likely to share the executive branch perspective on questions of recess appointments because (1) all federal judges have been screened, nominated and appointed by the executive branch; (2) as we have discussed before, federal judges are more often pre-disposed toward the executive branch by virtue of their legal training and experience; and (3) most federal judges (I suspect) have a less than positive view of how the Senate goes about giving its advice and consent.

This does not mean the courts will necessarily uphold the recess appointments here. But I think the playing field is tilted against the parties challenging those appointments. It should also be anticipated that the courts will look for ways to resolve the cases on the narrowest possible grounds, or without reaching the merits at all.

It is also important to remember that the course of the litigation will be determined primarily by the interests of the parties. Just as the interests of a small company may diverge from those of the larger business community represented by the Chamber of Commerce, so both sets of interests may diverge from the institutional interests of the Senate.

I do not mean to suggest that there is anything wrong with individual Senators, or the Senate as a whole, seeking to participate in litigation involving the constitutionality of particular recess appointments. The outcome of these cases could very well have an impact on the institutional prerogatives of the Senate, and there is no reason why the courts should not have the benefit of the views of Senators on these matters.

However, it would be a serious mistake for the Senate to rely on these cases as the primary or sole means of achieving a constitutional settlement. In addition to the possibility of an adverse or unhelpful outcome, there are several reasons for this conclusion.

First, Congress’s reliance on the court is at best a necessary evil. As Professor Chafetz points out, over-reliance on the courts “sends the wrong message” about Congress’s willingness and ability to protect its own institutional interests.

Second, while I have (somewhat reluctantly) reached the conclusion that pro forma sessions are a constitutionally effective way for the Senate to prevent recess appointments, they are hardly an optimal or even viable long-term solution. Pro forma sessions are a costly and unseemly means of protecting the Senate’s interests. Remaining in perpetual session would be contrary to the intent of the Framers. See Federalist No. 67 (“it would have been improper to oblige [the Senate] to be continually in session for the appointment of officers”) (Hamilton). In addition, use of pro forma sessions encourages the involvement of the House in a matter that should primarily, if not exclusively, be between the Senate and the President.

Third, while pro forma sessions may be effective to prevent executive abuse of the RAC, they do nothing to prevent (and may exacerbate) the problem of dysfunction in the Senate’s own advice and consent processes.

An optimal constitutional settlement would strike a balance between the legitimate interests of the Senate, on the one hand, and the executive branch, on the other. A judicial decision, however, will merely enhance the leverage of one side or the other. The courts lack the power, not to mention the institutional competence, to design a solution that encourages cooperative behavior by both sides.

We must therefore look elsewhere for means of constitutional settlement. This I will attempt to do in future posts.

2 Replies to “Recess Appointment Litigation As A Means Of Constitutional Settlement”

  1. I’m not convinced the “availability” provided by pro forma sessions means anything. The only way in which a pro forma sessions differs from a recess is the brief presence of one senator in the chair and presence in the Chamber of the staff. The Rules of the Senate enable the Secretary of the Senate to receive communications from the House and the executive during recesses; thus, it can receive nominations. Each House is subject to recall by its leadership under all adjournment resolutions passed these days; thus the Senate is able to act if necessary. Thus the same availability provided by the pro forma session is provided in adjournment. As a matter of fact, the ability to make a pro forma session a plenary one without unanimous consent probably only exists because of the resolution setting out the schedule for the pro forma sessions. If this availability makes a pro forma session a session, then it makes recesses under standard adjournment resolutions into sessions.

  2. Rich- thanks for the comment. I begin with the premise that the Constitution requires the Congress to convene on a date certain, and to remain convened until the two houses agree to “un-convene” or disperse (or the President intercedes). If there is an agreement to adjourn for more than three days, then several questions arise (1) is this an agreement to “un-convene” or merely to take a somewhat longer day-to-day adjournment than usual, (2) does the answer to the first question depend solely on the intent of Congress (ie, what Congress calls the adjournment) or does it depend on the actual facts of the adjournment, and (3) if it depends on the facts, who makes the determination and on what basis?

    Daugherty’s answer to these questions is that the distinction between “un-convening” (ie, recessing) and merely adjourning does not depend on Congress’s intent or labeling, but is a factual question to be decided by the President. His attempt to give this a qualitative aspect, beyond the period of time involved in the adjournment, is basically nonsensical. It really comes down to how long the adjournment is.

    Of course, at the time Daugherty issued his opinion Congress did not include recall provisions in its adjournment resolutions. One could argue that the President should take these provisions into account in determining whether a particular adjournment constitutes a recess, but I don’t see how, under Daugherty’s framework, one could say that they require the President to find there is no recess.

    The situation is quite different if the House and Senate never agree to adjourn in the first place. In that case neither house can adjourn for more than three days. Recall provisions would not suffice to satisfy this requirement; each house must actually convene every three days. For the reasons, I give in the post, I think that pro forma sessions satisfy this requirement, and I don’t think the logic of the Daugherty opinion justifies the President second-guessing whether the Congress is in compliance with its constitutional obligations.

    This analysis would hold even if, as you suggest, the Senate’s practical availability in a pro forma session were identical to its practical availability in an adjournment with a recall provision. However, I doubt that this is the case. For one thing, the recall provisions require both the House and Senate leadership to agree on re-convening. This gives the House a veto over the Senate’s availability for purposes of advice and consent.

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