Noel Canning: Unanimous Judgment, Divided Reasoning

For a 9-0 decision invalidating the President’s exercise of the recess appointment power, the Supreme Court’s opinion today in Noel Canning revealed a bitter divide among the justices. Justice Breyer, writing for the majority, basically went “full Daugherty,” finding that the Recess Appointment Clause applies to both “inter-session” and “intra-session” breaks, but finding that those breaks must exceed a minimum length to qualify as recesses in which the President may exercise his temporary appointment power. The key quote from Breyer’s decision:

If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, §5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.

In his concurrence (joined by the Chief Justice and Justices Thomas and Alito), Justice Scalia accuses the majority of adopting an “adverse possession” theory of executive power. In other words, because the executive has long asserted the power to fill vacancies that do not arise during a recess and has maintained that they may be filled during intra-session as well as inter-session breaks and because the Congress has failed to resist these theories on a consistent and effective basis, the executive branch’s theory will prevail. The concurrence would read the RAC to be limited to vacancies that arise during the recess and would hold that only a break between formal sessions constitutes “the recess.”

There will be undoubtedly many other takeaways from a thorough reading of the opinion. But note that this opinion has an important near term effect on the Congress. It appears at first blush that the House can prevent the President from making any more recess appointments simply by refusing to consent to any adjournments of more than three days for the remainder of the Congress.  But one can imagine that the executive branch and the Senate Democratic leadership might look for wriggle room, particularly if the Republicans win control of the Senate in November’s election. In particular, the Senate could try to amend its rules so as to deprive itself of the capacity for doing business during pro forma sessions. We will see whether they get that desperate.

What Senate Legal Counsel’s Silence Says About Noel Canning: Not Much

Writing in Slate last week, Professor Neal Devins, a noted expert on the Constitution and Congress, had several complaints about how Congress presents its legal positions in court. Devins is unhappy that the House, because it operates on a majoritarian basis, may present legal views that are held only by the majority, but he is equally unhappy that the Senate, because it requires bipartisan consensus, may present no legal views at all. And he is particularly unhappy that in the Noel Canning recess appointments case the Supreme Court heard “only from the Senate minority and not from the Senate itself.” As Devins asks plaintively, “why would the Senate’s own lawyer sit on his hands while the minority leader purports to speak for the Senate?”

Why indeed. Let’s begin by reviewing how “the Senate’s own lawyer,” aka the Senate Legal Counsel, operates. As Devins notes, Senate Legal Counsel must, by statute, receive specific authorization before filing any brief on behalf of the Senate. Devins says that “counsel representation of the Senate requires two-thirds support of a leadership group made up of four members of the majority party and three members of the minority party,” but this is incorrect. Appearance as amicus curiae is authorized by Senate resolution, not by the Joint Leadership Group. See 2 U.S.C. § 288b(c). Nothing in the statute requires that such a resolution be bipartisan.

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Seth Barrett Tillman on the Relationship Between the Origination Clause and Recess Appointment Clause Cases

Professor Tillman sends the following thoughts:

I expect one or more, if not all of the Supreme Court’s four liberal members to affirm the DC Circuit’s decision in Noel Canning. The primary issue in Noel Canning is not whether or not the Senate was in recess – but who or what institution gets to decide whether or not the Senate was in recess. Does the Senate make that call or do the President and the courts? In other words, once the Senate has flagged in the traditional way in its traditional records whether or not it is in session or in recess, does anyone (including the President) get to look beyond or behind the record created by the Senate. The President’s position is that the President and the courts are in a better position to make the call than the Senate.

The Origination Clause challenge to the PPACA, which is now making its way through the lower courts, poses a very similar (if not precisely the same) issue. The enrolled bill enacting the PPACA expressly records that the bill originated in the House, not the Senate. The plaintiffs in the Origination Clause case take the position that the courts should ignore the joint determination of the House and Senate in regard to house of origin, in spite of the fact that the relevant constitutional actors have made a final determination using their traditional records in the traditional way. Here too, plaintiffs say the courts could and should look behind the official House-Senate-created-and-verified record.

When is the Senate in recess?

      When the Senate’s records state that the Senate was in recess.

When has a bill originated in the House?

      When the enrolled bill enacting the statute records that the bill originated in the House.

After all, with the demise of the filibuster, the scope of the President’s recess appointment power matters much less. So if the Supreme Court wants to reverse Noel Canning, then “Go ahead, make my day.”

 

Heritage Foundation Panel on Recess Appointments

This Thursday, October 10, at noon, the Heritage Foundation will be hosting an event on recess appointments and the case currently pending in the Supreme Court. Senator Mike Lee will deliver opening remarks, followed by a panel discussion by Professor John Yoo and me. Here is the synopsis of the event:

Recess is over, but the President has been playing around with the Recess Appointments Clause. Earlier this year, President Obama’s alleged recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau came under fire. The problem? The Senate was not in recess at the time of the appointments. Three federal appellate courts have struck down various recess appointments as unconstitutional, and the Supreme Court has agreed to hear National Labor Relations Board v. Noel Canning this term.

In light of these controversial appointments, we are left with many questions. What is the role of the Senate when it comes to recess appointments? How did our Founding Fathers intend for the recess appointment power to be used? Can the Senate block the President from making recess appointments through the use of pro forma sessions? How might the justices rule in the Noel Canning case? Please join us as our panel of experts explores these issues.

The link for registering for this free event is here.

Cert Granted on Three Recess Appointments Questions

The Supreme Court granted cert today in the Noel Canning case, as pretty much everyone expected. Cert was granted as to the two questions raised by the government, (1) whether the President can make recess appointments during so-called “intra-session recesses” and (2) whether the vacancy must arise during the recess for the President to exercise power under the Recess Appointments Clause. In addition, the Court directed the parties to address a third question raised by Noel Canning: “Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”

The Third Circuit and the “Session” of the 18th Century Vermont General Assembly

As mentioned in my prior post, in the course of analyzing the meaning of “recess” in the Recess Appointments Clause, the Third Circuit considered legislative practice at the time of the framing. In looking at the state legislatures prior to 1787, the court found what it viewed as conflicting evidence on whether recesses are limited to intersession breaks.

Some state constitutions, the court noted, clearly indicated that a “recess” and a “session” cannot occur conterminously, thus supporting the intersession recess theory. For example, the Massachusetts and New Hampshire constitutions contain provisions that “make sense only if the legislature is not in ‘session’ when it is ‘in recess.'” Opinion at 48. (This is a point I previously made with respect to the Massachusetts constitution).

On the other hand, the court pointed to instances where the executive branch of a state had (allegedly) interpreted the “recess” to include intra-session breaks. For example, the Vermont constitution granted the executive power to lay embargoes during “the recess of the legislature only.” The Vermont General Assembly, which was meeting in Windsor, adjourned on April 16, 1781, stating that it would next meet on the second Wednesday of June at Bennington. During this adjournment, in May 1781, the Governor of Vermont imposed an embargo.

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The Third Circuit’s Recess Appointments Decision

Another appellate court has weighed in on the legality of President Obama’s recess appointments to the National Labor Relations Board. In NLRB v. New Vista Nursing & Rehabilitation, the Third Circuit held that “the Recess” in the Recess Appointments Clause refers only to the period between Senate sessions. Because the NLRB appointments were made during so-called “intra-session recesses,” the court concluded that they were illegal.

Although the Third Circuit reached the same result as did the D.C. Circuit in Noel Canning, the two opinions differ in some important respects. For example, while the D.C. Circuit placed a good deal of emphasis on the RAC’s use of the word “the” (as in “the Recess”), the Third Circuit declined to do so, finding the use of that word to be “uninformative.” Opinion at 57. The Third Circuit also declined to reach the issue of whether a vacancy must occur during a recess to be filled under the RAC. Opinion at 101 n.34.

The Third Circuit begins its analysis by identifying three possible meanings of “the Recess of the Senate”; (1) intersession breaks; (2) intersession breaks plus those intra-session breaks that last a non-negligible period (which the executive branch has historically identified, based on the Daugherty opinion, as more than ten days); and (3) “any time in which the Senate is not open for business and is unavailable to provide its advice and consent.” Opinion at 38. The last definition is, according to the court, the definition proffered by the NLRB.

The opinion looks at dictionary definitions (specifically Johnson’s dictionary) and legislative practice at the time of the framing, historical practice of the President and Congress under the RAC and other considerations, such as the need to adopt a definition of “recess” that provides a bright-line test that the political branches can rely upon. It finds some of these inconclusive, but most of them tend to cut against the second and/or third options, leaving the first (intersession breaks) as the most plausible meaning of the the “recess.” As John Elwood observes at the Volokh Conspiracy, the court places particular emphasis on the fact that recess appointments expire at the end of the “next Session.” It reasons that this durational provision must have been designed to ensure that recess appointments remain as an “auxiliary” method of appointment so that recess appointees serve “for only the time needed for the president and the Senate to have the opportunity to undergo the normal process.” Opinion at 75. If recess appointments could be made during intra-session breaks, then the Senate’s reconvening to continue the same session would have no effect on the recess appointment, which would continue even though the Senate was available to confirm a permanent appointment.. Opinion at 78.

In a rather rambling dissent, Judge Greenaway concludes that the “recess” must include both intersession and intra-session breaks. Adopting a functional approach, he argues that the purpose of the RAC is to allow the President to fill positions when the Senate is unavailable to provide advice and consent. Because the Senate is equally unavailable to provide advice and consent whether it is on an intersession or intra-session break, Judge Greenaway finds that the RAC must apply to both. Dissent at 6.

Although there is much to be commended in the majority opinion, it rests on a misconception (or at least an unexamined assumption) regarding the nature of a “session.” To which I will turn in my next post.

The Government’s Trick Question in Noel Canning

The first question presented by the administration’s cert petition in the Noel Canning case turns out to be a trick question:

“Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.”

Why is the government using the word “enumerated”? By using that word, and using it only in connection with one of the two references to Senate sessions, it leaves the impression that there is a difference between a “session” and an “enumerated session” of the Senate. It would not seem to be in the government’s interest to leave that impression.

Nor would it seem to be in its interest to highlight the word “enumerated.” I can just hear Justice Scalia: “Where in the Constitution does it refer to ‘enumerated’ sessions?” “Would this case be different if Congress alphabetized its sessions?”

As it happens, I think there is a difference between a “session” and an “enumerated session” of the Senate. That means that there is a third option beyond those presented in the government’s question. There can be no recess appointments within a “session” of the Senate, but there can be recess appointments that are not between “enumerated sessions” of the Senate. So the correct answer to the government’s question is “no.”

Noel Canning: Does It All Depend On What The Meaning Of “The” Is?

In Noel Canning v. NLRB (Jan. 25, 2013), the D.C. Circuit held that President Obama’s January 4, 2012 recess appointments to the National Labor Relations Board were constitutionally invalid because the Senate was in an intrasession adjournment at the time. The court held that only a period of intersession adjournment constitutes “the Recess” of the Senate within the meaning of the Recess Appointments Clause.

The court has been the subject of some justifiable criticism (see Professors Garrett Epps here and Eric Posner here) for its emphasis on the fact that the RAC refers to “the Recess,” rather than “a Recess.” In the court’s estimation, this fact leads to the “inescapable conclusion” the Framers intended “something specific” by “the Recess.” The court concludes that the Framers must have used “the Recess” to mean something narrower and more specific than any break in the proceedings. It contrasts the Constitution’s use of “the Recess,” which appears only in the RAC and the Senate Vacancies Clause, with its use of the terms “adjourn” and “adjournment” to signify any break in proceedings.

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