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.

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”

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”

More Evidence Against the Multi-Session Recess Appointment

As discussed by the January 6, 2012 OLC memorandum, Presidents Harding and Coolidge each made one “intrasession” recess appointment. Harding’s appointment, made on August 30, 1921 (and presumably the reason for the August 27 opinion of Attorney General Daugherty), was to fill a vacancy in the Registrar of the Land Office. Coolidge made an appointment to fill a vacancy on the Interstate Commerce Commission. Along with President Andrew Johnson’s recess appointments, these were apparently the only “intrasession” recess appointments made prior to the 1940s.

I don’t know anything more about Harding’s appointment, but Coolidge’s recess appointment was of a gentleman by the name of John J. Esch. After Congress convened on December 5, 1927, it adjourned from December 21, 1927 to January 4, 1928. Coolidge recess appointed Esch to the ICC on January 3, 1928.

Under the multi-session recess appointment theory, Esch’s appointment would have lasted until the end of the “next session” of Congress, which convened on December 3, 1928 and ended on March 3, 1929. However, according to this Wikipedia entry, “Esch’s recess appointment ended with the close of Congress’s term on May 29, 1928, and he left the Commission.”

This is further evidence that the Daugherty opinion was neither intended nor interpreted to validate “intrasession” recess appointments that would span more that one congressional session.

Constitutional Settlements and the Recess Appointments Clause

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

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

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

Continue reading “Constitutional Settlements and the Recess Appointments Clause”

Burying the Multi-Session Recess Appointment Theory

In a recent post on the Recess Appointments Clause, I argued that the current method (the multi-session recess appointment theory) for determining the tenure of a recess appointee is based on “precedent” which does not amount to a hill of beans. It is time now to consider afresh the question of how one ought to determine the end of the Senate’s “next session” for purposes of the RAC.

 

The Reciprocal Meaning of Recess and Session

Discussion of the term “recess” has generally agreed that it may refer, both today and at the time the Constitution was written, to suspensions of business of any duration. With regard to today’s usage, Professor Hartnett notes “as anyone who has ever attended elementary school, a committee meeting, or a trial can attest, a ‘recess’ is quite frequently a rather short break.” With regard to usage in the late 18th and early 19th centuries, the 11th Circuit states that “recess” was “a general term for the suspension of business,” pointing to Samuel Johnson’s “A Dictionary of the English Language” (1755) and Noah Webster’s “An American Dictionary of the English Language” (1828).

The term “session,” as used today, can refer to  “a single continuous sitting, or period of sitting, of persons so assembled,” or “a continuous series of sittings or meetings of a court, legislature, or the like.” Thus, we might refer to “the afternoon session,” or “today’s session,” or the “fall session.” The degree of continuity is relative; saying that the Senate is “in session” might mean that Senators are currently on the floor conducting business, or that the Senate is conducting business today, or that the Senate is “in town” and meeting from time to time.

Although both “recess” and “session” can be used in different senses, one sense is as mutually exclusive statuses of a legislative body. As Senator Gore explained in 1814, “[t]he time of the Senate  consists of two periods, viz: their session and their recess.”

This usage of the terms “session” and “recess,” which Hartnett terms the “reciprocal” usage, was recognized in the 18th century. Thus, Johnson’s dictionary defines “session” as “an assembly of magistrates or senators” or “the space for which an assembly sits without intermission or recess.” Put another way, a “recess” would break the continuity of a “session” and thereby end it. An “intra-session recess” would therefore be oxymoronic.

Continue reading “Burying the Multi-Session Recess Appointment Theory”

When Harry Met Lindsay

Thanks to the good people at the Truman Library, I can provide a little more background on the relationship between President Truman and Comptroller General Warren. You can decide for yourself its relevance for evaluating Warren’s 1948 opinions on the Recess Appointments Clause, but it seems to me that, at the least, it shows that the executive branch exaggerates when it presents Warren as a defender of legislative branch interests and prerogatives. See, e.g. Brief of the United States in U.S. v. Miller 15 (contending that Warren’s opinions should be viewed in the context that the Comptroller General is an “officer of the Legislative Branch” and therefore “subservient to Congress”).

In the spring of 1947 Warren issued two opinions that rejected attempts by administrative agencies, in one case the Coal Mines Administration and in the other the U.S. Maritime Commission, to circumvent statutory restrictions on their authorities. These decisions led Truman to personally phone Warren to complain. The tone of this call, which occurred on Monday, June 30, 1947, must be left to the imagination, but on Wednesday Warren sent Truman a letter which begins “My dear Mr. President: Needless to say I was quite disturbed when I received your telephone call on June 30 . . .” and follows with a lengthy explanation of why he had no option but to decide the cases as he did.

I will spare you the details, but Warren emphasizes that he bent over backwards to assist the agencies in resolving their problems, including in one case personally telephoning the Chairman of the House Appropriations Committee to lobby him on behalf of the Maritime Commission. As I noted previously, there is no evidence of similar consultation with Congress before Warren decided adversely to its interests the following summer.

Warren closes his letter with a description of his office’s role that might seem more appropriate for the Office of Legal Counsel than for a legislative office “subservient to Congress:”

I want to assure you, Mr. President, that the officials of this office have a sympathetic understanding of the critical problems that many times confront the President and the departments and establishments of the Government. Many of them work overtime gratuitously on nights, week-ends and holidays in an effort to assist the Executive agencies in solving their problems and otherwise to extend the fullest cooperation. But just as those agencies are amenable to the law, and must abide by legislative enactments, so too must the General Accounting Office in passing upon matters coming before it. Occasions arise, of course, when we must decide questions without regard to our personal sympathies and, sometimes, adversely to the wishes of administrative officials. I know, too, the tremendous burden you must bear and the fact that many times matters are called to your attention so briefly or in such manner that the many details thereof—as in these two cases—are not made known to you. It is simply for that reason that I have considered it appropriate to send you this letter in order that you may have the complete picture before you in writing and know the thorough and sympathetic consideration that the matters involved received in the General Accounting Office.

Truman was evidently mollified, because he responded with a note of appreciation on July 11, closing as follows:

As you know, I have been having a lot of difficulties with the Congress, and with other things, and I was very certain that it was not your policy to add to those difficulties. I am very glad I called you because I know you feel better, and I am sure I do, over our exchange of information.

I don’t think it is unreasonable to suspect that when Warren reviewed the politically sensitive RAC cases the following year, he was keenly aware of the need to give “sympathetic consideration” to the administration’s request so as not “to add to [Truman’s] difficulties” and perhaps to avoid another call from “give ‘em hell Harry.”

Comptroller General Warren and the Origins of the Multi-Session Recess Appointment

As far as I know, Lindsay Warren was a competent attorney who served honorably as the third Comptroller General of the United States. The opinions that he issued in the summer of 1948 regarding the Recess Appointments Clause, however, were not a high point of his career or of the GAO’s protection of the institutional interests of the Congress.

To set the stage, Warren had been a long-serving Democratic congressman from North Carolina who was thrice offered the position of Comptroller General by President Franklin D. Roosevelt. The third time, in 1940, while he was serving as acting House Majority Leader, Warren accepted the offer. Warren’s acceptance of the position was an important signal that Roosevelt, who had previously attempted to eliminate or radically transform the GAO, no longer intended to do so. As Warren would later explain: “Mr. Roosevelt gave up his fight when I accepted this appointment. . . . [I]t is hard to conceive that I would give up a seat in Congress and accept this position in order to preside over the liquidation of the General Accounting Office.”

During World War II, the GAO’s most important function was to audit and investigate military expenditures, particularly the thousands of cost-plus contracts that were awarded in support of the war effort. In this role Warren worked closely with then-Senator Harry Truman, who chaired the Senate Special Committee to Investigate the National Defense Program. For example, in April 1943 Warren informed Truman of kickbacks that were being paid by Detroit-area subcontractors to procure work on these cost-plus defense contracts. Warren later proposed legislation, with Truman’s support, to prohibit such kickbacks.

Warren’s partisan affiliation and his close ties to the Roosevelt and Truman administrations may or may not be relevant to what follows, but they are certainly worth keeping in mind.

Truman became Roosevelt’s Vice President and ascended to the presidency on Roosevelt’s death in April 1945. The Republicans won control of Congress in 1946, ending (or interrupting) the period of Democratic dominance that began with the elections of 1932. The Eightieth Congress assembled on January 3, 1947 and adjourned on July 27, 1947. Rather than adjourning sine die, however, it adjourned to January 2, 1948, and reserved to congressional leaders the authority to call the Congress back into session at an earlier date. It followed the same practice in 1948, adjourning on June 20 until December 31, but authorizing congressional leaders to call members back early.

Given the bitter relations that developed between President Truman and the Republican Congress, one might assume that this practice was designed, as in the Fortieth Congress, as a means of thwarting the exercise of presidential authority. In fact, according to the Senate historian, it reflected a precaution taken in case something happened to the President (there being no Vice President to assume his duties).

To make matters more interesting, in both 1947 and 1948, Truman used his power under Article II, section 3 (“he may, on extraordinary Occasions, convene both Houses, or either of them”) to convene Congress during its extended adjournment. He convened Congress from November 17, 1947 to December 19, 1947, and again from July 26, 1948 to August 7, 1948.

Continue reading “Comptroller General Warren and the Origins of the Multi-Session Recess Appointment”

Attorney General Daugherty and the “Intra-Session” Recess

We now come to Attorney General Harry Daugherty, whose 1921 opinion still controls the executive branch’s understanding of what constitutes a “recess” within the meaning of the Recess Appointments Clause. See OLC Opinion, “Lawfulness of Recess Appointments during a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions” 5 (Jan. 6, 2012) (noting that the existence of a recess is determined “[u]nder a framework first articulated by Attorney General Daugherty in 1921, and subsequently reaffirmed and applied by several opinions of the Attorney General and this Office”); id. at 12 (discussing Daugherty’s “seminal opinion”).

The prominence of this opinion is presumably not due to the prestige of its author. No one would describe Harry Daugherty as an “extraordinary lawyer.” At least not in a good way. See L. McCartney, The Teapot Dome Scandal 63 (2008) (describing how Daugherty and a crony entertained President Harding and members of his administration at the H Street house, which they ran “like a combination bordello, gambling den, and speakeasy at a cost of $50,000 a year.”).

But I digress.

Continue reading “Attorney General Daugherty and the “Intra-Session” Recess”