Recess Games

           The Obama administration announced this week that the President will give a recess appointment to Donald Berwick to serve as administrator of the Centers for Medicare and Medicaid Services.  The appointment will come during the Senate’s current eleven and a half day adjournment for the Independence Day holiday. 

            Berwick was nominated for the position in April, but the Senate Finance Committee has yet to schedule a hearing on the nomination.  The recess appointment was denounced not only by Senate Republicans, but by Committee Chair Max Baucus (D-Mont.), who stated: “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered.” 

            The Recess Appointments Clause (U.S. Const., art. II, sect. 2, cl. 3) provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”  This provision raises two basic interpretative issues: (1) what constitutes “the recess” of the Senate referred to in the clause? and (2) what does it mean for a vacancy to “happen during” such a recess? 

            A number of legal scholars have argued that “the recess” referred to in the clause is the recess between sessions of Congress, which normally occurs only once a year.  The intrasession periods of adjournment are not recesses within the meaning of the clause, they argue, and the President has no constitutional power to recess appoint anyone during those periods.  In addition, some scholars argue that a recess appointment can only be made if the vacancy has arisen during that recess.  A vacancy that has occurred earlier did not “happen during” that recess, and therefore is not eligible for a recess appointment.  Professor Michael Rappaport laid out these two arguments in his article, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005).   

            If either of these arguments is correct, President Obama’s appointment of Berwick is unconstitutional.  I will leave consideration of the merits of these arguments for another day.  For present purposes, I would just note that one of the foremost academic supporters of the Rappaport position is Marty Lederman, formerly a law professor at the Georgetown University Law Center.  Lederman was outspoken in criticizing President Bush’s recess appointments on the grounds that they violated the Recess Appointments Clause as properly interpreted.  Lederman, for example, was on the legal team that filed a brief (on behalf of the late Senator Edward Kennedy) challenging the constitutionality of Bush’s recess appointment of Judge William Pryor to the Eleventh Circuit Court of Appeals. 

            In addition, Lederman criticized Bush’s recess appointments on the grounds that, regardless of whether they complied literally with the Clause, they constituted abuses of the recess appointment power because they were designed for no purpose other than to circumvent the Senate’s advice and consent function.  For example, Lederman argued that recess appointments made during an eleven and a half day Senate adjournment were  obviously not for the purposes intended by the Clause, namely to deal with emergencies where the Senate was unavailable to provide its consent.  Instead, he contended that such appointments “make a mockery of the procedure contemplated in the Appointments Clause” and represented “constitutional cynicism of the highest order.” 

            Lederman now serves as Deputy Assistant Attorney General for the Office of Legal Counsel.  Which naturally raises the question—has he advised Obama that Donald Berwick is unconstitutional?

Is the Pay Czar Unconstitutional?

           Professor (and former judge) Michael McConnell has written this Wall Street Journal op-ed arguing that Kenneth Feinberg, the “pay czar,” is an officer of the United States and therefore subject to the Appointments Clause.   Under the Appointments Clause, all officers must be appointed by the President, with the advice and consent of the Senate, unless Congress has by law provided for a different method of appointment.  Since Congress has not done so, McConnell contends, Feinberg was unconstitutionally appointed and his decisions regarding executive compensation were without legal authority. 

            This appears to be a very powerful argument.  The authority to cap executive compensation, which was given to the Secretary of the Treasury as part of the TARP legislation, would clearly seem to be the type of significant legal authority that can only be exercised by an officer of the United States.  As I have noted before, officers of the United States have included ministerial officials with little, if any, discretionary authority (eg, deputy postmasters or deputy clerks of court),  It is hard to imagine that the authority to limit private sector compensation, even for a limited group of individuals, would not qualify. 

            I can think of only two plausible arguments that the administration might make in response.  First, it might claim that Feinberg has no authority to act on his own and merely makes recommendations to the Secretary of the Treasury.  However, according to McConnell, Feinberg actually signed orders on executive compensation.  If this be true, it would be very hard to argue that his role is purely advisory, even if his orders were subject to review by the Secretary of the Treasury. 

            Second, the administration might argue that Feinberg’s functions are not “continuing” because they only relate to TARP, which is a temporary program.  The Office of Legal Counsel has opined that an officer of the United States must exercise “continuing” legal authority so that being sent on a special diplomatic mission, for example, is not enough to make one an officer.  I tend to doubt that Feinberg’s role is of such a limited and temporary nature so that he would not qualify as an officer, but there is no bright line test that would enable one to make that judgment with complete confidence. 

            This could be the subject of some interesting litigation.    

More on White House Czars and the Appointments Clause

            As noted in a prior post , WH Counsel Greg Craig maintains that none of the White House or National Security Council “czars” are officers of the United States within the meaning of the Appointments Clause because they “exercise[] [no] independent authority or sovereign power.”  Instead, Craig argues, they perform solely advisory functions.  For example, he asserts that the “sole function” of the Information Sharing, Central Region, Cybersecurity and WMD Policy “czars” on the NSC staff is “to advise the President, often through recommendations that are formulated by NSC principals and deputies committees.” 


            The three constitutional law experts who testified last week before the Senate Judiciary  Subcommittee on the Constitution seemed to share Craig’s general views regarding what constitutes an officer of the United States.  T.J. Halstead of CRS noted “the Supreme Court’s determination that the “strictures of the Appointments Clause only apply to persons exercising ‘significant authority pursuant to the laws of the United States</place /></country-region />.’”  Professor John Harrison of UVA</placename /> Law</placename /> School</placetype /></place /> similarly testified that many persons who work for the federal government do not exercise “significant authority” and therefore are not officers, but mere employees.  Professor Tuan Samahon of Villanova</placename /> Law</placename /> School</placetype /></place /> also adverted to the “significant authority” test as marking the line between officer and non-officer and indicated that “purely advisory positions” are not deemed to be offices within the meaning of the Appointments Clause.  


These experts rely largely on the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1, 125-26 (1976), as well as the 2007 OLC opinion cited by Craig.  But does Buckley really stand for the proposition that only individuals exercising “significant authority” are officers of the United States?


Buckley involved the question of whether the members of the Federal Election Commission were required to be appointed in conformity with the Appointments Clause. The FEC was charged by statute with a number of executive and administrative functions of the sort typically found in administrative agencies, such as engaging in rulemaking, issuing advisory opinions, and filing civil suits to enforce the law.


There was no contention in Buckley that the FEC commissioners were functioning as mere employees, rather than as officers. The Court’s entire discussion of this possibility is contained in footnote 162, which states: “’Officers of the United States’ does not include all employees of the United States, but there is no claim made that the Commissioners are employees of the United States rather than officers. Employees are lesser functionaries subordinate to officers of the United States, see Auffmordt v. Hedden, 137 U.S. 310, 327 (1890); United States v. Germaine, 99 U.S. 508 (1879), whereas the Commissioners, appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.”


Neither of the cases cited by the Court, however, involved “employees” in the modern sense. Auffmordt held that a merchant appraiser, selected on a temporary basis by the collector of customs to conduct a reappraisal of particular goods, did not hold an office under the Constitution. Germaine held that a civil surgeon, appointed by the Commissioner of Pensions to make occasional and periodic examinations of pensioners (for which he was paid on a per examination basis), was likewise not an officer. These cases stand for little more than the proposition that a contractor who provides goods or services to the government does not thereby become an officer.


It is true that the Buckley Court states that any appointee “exercising significant authority pursuant to the laws of the United States” is an officer of the United Statesand must be appointed in accordance with the Appointments Clause, a formulation that it repeats at several points. But nowhere does the Court state that only individuals exercising “significant authority” qualify as officers, nor does it give any explanation or example (other than the two cases cited above) of what would constitute “insignificant authority” for purposes of the Appointments Clause.


The Court did does affirm that Congress can create “offices” in the “generic sense” without requiring that those offices be filled in accordance with the Appointments Clause, but only so long as the occupants “perform duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not ‘Officers of the United States.’” (emphasis added) Moreover, the Court states that the Framers viewed the concept of “officers of the United States” as “embrac[ing] all appointed officials exercising responsibility under the public laws of the Nation.” These broader formulations suggest that the Court’s observations regarding the exercise of “significant authority” were not intended to mark the precise line between officer and non-officer, but merely to establish that the FEC was well on the officer side of that line.


The 2007 OLC opinion, in fact, notes that the “significant authority” phrase used in Buckley “does vary somewhat from the well established historical formulation, but nothing in the Court’s opinion suggests any intention to break with the longstanding understanding of a public office or fashion a new term of art.” OLC points out that the Buckley Court cites with approval several nineteenth century cases that treated “arguably insignificant positions as offices.” As OLC notes, the original understanding of officer included persons holding ministerial offices such as “registers of land offices, masters and mates of revenue cutters, inspectors of customs, deputy collectors of customs, deputy postmasters, and district court clerks.” Accordingly, OLC opines that Buckley merely adopted a “shorthand for the full historical understanding of the essential elements of a public office.”


The problem is that this “historical understanding” does not go very far in establishing whether or not White House or NSC officials are officers for purposes of the Appointments Clause. These officials do not have the types of functions that are most typically and obviously associated with being an officer, such as law enforcement, rulemaking or formal military command, but they are certainly nothing like the independent contractors providing commercially available services as in Auffmordt or Germaine.


The OLC opinion notes that “[t]he mere authority to advise or inform” does not constitute “delegated sovereign authority” so as to create an office within the meaning of the Appointments Clause. But this observation is rooted in historical examples of advisory or investigative commissions performing functions analogous to congressional committees. See, e.g., Buckley, 424 U.S. at 137 (“Insofar as the powers confided in the [FEC] are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress may delegate to one of its own committees, there can be no question that . . . [the FEC] may exercise them [without complying with the Appointments Clause]”).


While WH and NSC officials, including the various “czars,” clearly have advisory functions, it is a bit of a stretch to say that their roles are “purely advisory” or comparable to a commission established to make a report and recommendations on a particular subject. When the Brownlow committee first proposed an expansion of “presidential assistants” in 1937, it described their roles as follows: “These aides would have no power to make decisions or issue instructions in their own right. They would not be interposed between the Presidents and the heads of his departments. They would not be assistant presidents in any sense. Their function would be, when any matter was presented to the President for action affecting any part of the administrative work of the Government, to assist him in obtaining quickly and without delay all pertinent information possessed by any of the executive departments so as to guide him in making his responsible decision; and then . . . ‘to assist him in [informing departments and agencies of the decision]. . . . They would remain in the background, issue no orders, make no decisions, emit no public statements.”


It is questionable whether this modest conception of the role of presidential advisors reflected reality even when the Executive Office of the President was formally organized several years later. Brownlow himself described the newly created office as “the institutional realization of administrative management and ‘the effective coordination of the tremendously wide-spread federal machinery.’” These are functions which go beyond merely providing information, advice and recommendations to the President.


In any event, there is a significant gulf between the “purely advisory” conception of presidential advisors and the actual role that they have played over the past 70 years. This legal history of the NSC, for example, describes how it has “evolved from a limited advisory council to a vast network of interagency groups that are deeply involved in integrating national security policy development, oversight of implementation, and crisis management.” While the authority and role of the National Security Advisor has differed depending on the administration, it has never been a purely advisory position.


It may be true that the National Security Advisor and other WH aides are not supposed to have operational responsibilities or authority. The line between policy making/coordinating and operations, however, may sometimes be less than clear. For example, the 9/11 Commission (a truly advisory body) described how Richard Clarke, who served on the NSC staff as “national coordinator for security, infrastructure protection and counterterrorism,” became the “manager of the U.S. counterterrorism effort.”


Even if it is assumed, however, that WH or NSC officials do not exercise operational authority (or that any authority they do exercise is ultra vires), it is by no means clear that their policymaking and coordinating functions are insufficient to qualify them as officers of the United States. One would have to analyze the actual functions and authorities of each WH or NSC “czar” to make such a determination.


To take just one example, the report recommending the establishment of a WH “cybersecurity policy official” (popularly referred to as the “cyberczar”) describes that official’s functions “to coordinate the Nation’s cybersecurity-related policies and activities.” Although the cyberczar should have no operational responsibility or authority, the report says, he or she “should harmonize cybersecurity-related policy and technology efforts across the Federal government, ensure that the President’s budget reflects federal priorities for cybersecurity, and develop a legislative agenda.” Moreover, the cyberczar is to serve “as the White House action officer for cyber incident response.”


These do not seem like “purely advisory” duties. Indeed, one might argue that the cyberczar’s budgetary responsibilities sound a lot like the “preparatory plans of finance,” described in Federalist No. 72 as one of the key functions of an executive officer.


Are these functions nonetheless “sufficiently removed from the administration and enforcement of the public law” to be performed by a non-officer under Buckley? Perhaps. But there is nothing in Buckley or any other controlling precedent to answer the question, which appears to be far murkier than suggested by Craig’s letter.













Obama’s Czars and the Appointments Clause

           Gregory Craig, counsel to the President, sent a letter to Senator Feingold last week regarding the various “czars” employed by the Obama administration.  Among other things, Craig responds to concerns raised by Senator Collins (my former boss) that some of the positions may violate the Appointments Clause, which provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” 

            Only “principal” officers of the United States need be appointed with advice and consent of the Senate.  However, all “officers of the United States” need to be appointed in accordance with the Appointments Clause.  Craig, however, evidently denies that any of the czars are officers at all.  This is what he says: 

Moreover, none of the new White House or NSC positions violates the Appointments Clause.  The Constitution requires that “Officers of the United States” be nominated by the President “by and with the Advice and Consent of the Senate.”  U.S. Const. art. II, § 2, cl. 2.  The Department of Justice has concluded, in an opinion drafted during the prior Administration, that a position is a “federal office” if it is “invested by legal authority with a portion of the sovereign powers of the federal government.”  Officers of the United States within the Meaning of the Appointments Clause, 2007 WL 1405459 (Apr. 16, 2007).  As described above, none of the White House or NSC positions identified by Senator Collins exercises any independent authority or sovereign power.  Their one and only role is to advise the President.  Similarly, I am confident that none of the agency positions identified exercises any authority or sovereign power independent of their respective Senate-confirmed officials.  In order to resolve the issue definitively, however, I have asked the general counsels of the various agencies at issue—the Departments of State, Treasury, Homeland Security, and Labor, as well as the EPA—to respond directly to this concern. 

            Craig’s position that the White House and National Security czars are not officers raises some difficult and unsettled issues (about which more in a future post).  His claim that none of the agency czars are officers, however, seems untenable.  For example, the     OLC opinion on which Craig relies makes clear that individuals engaging in diplomatic functions, such as “[t]he actual conduct of foreign negotiations,” hold federal offices within the meaning of the Appointments Clause.  See OLC Opinion at 15-17.  The OLC notes that “the power of a diplomatic office is peculiarly delegated directly by the President, who makes such officers ‘the unquestionable representatives pro tanto of the sovereignty of the United States.’”  In fact, it points out that ‘[t]o the Founders, the proper exercise of such sovereign authority by officers abroad was critical for the security of the Nation,” as illustrated by the fact that the Foreign Emoluments Clause (art. I, § 9, cl. 8-) “was adopted with particular reference to preventing foreign corruption of such officers.” 

            These views would seem to contradict Craig’s contention that certain diplomatic czars are not officers subject to the Appointments Clause.  For example, Craig mentions Todd Stern (no relation), who serves as the “Special Envoy for Climate Change.”  According to the State Department’s website, in this position Stern “plays a central role in developing the U.S. international policy on climate and is the Administration’s chief climate negotiator, representing the United States internationally at the Ministerial level in all bilateral and multilateral negotiations regarding climate change.”  This position would seem to fall squarely within OLC’s definition of a federal office subject to the Appointments Clause. 

            It will be interesting to hear whether the State Department Legal Adviser agrees that Stern is not an officer of the United States.  One would also expect that OLC would be asked for its views on this matter.

Tillman and Bailey on Federalist No. 77

Seth Barrett Tillman has written a new article entitled “The Puzzle of Hamilton’s Federalist No. 77” [forthcoming 2010 in the Harvard Journal of Law and Public Policy], in which he takes a fresh look at Hamilton’s statement that “[t]he consent of [the Senate] is necessary to displace [an officer] as well as to appoint.”  This statement, Tillman explains, has been “the rallying cry of those who oppose the unitary executive position” because it suggests that even Hamilton, the most prominent supporter of a strong executive, believed that the President lacked the power to remove officers without the Senate’s consent.  Tillman argues, however, that this view misapprehends Hamilton’s meaning because when Hamilton referred to “displac[ing]” an officer he meant “replacing” rather than “removing.” 

Responding to Tillman, Jeremy Bailey argues that Hamilton meant to oppose unilateral presidential removal powers in Federalist No. 77 and in fact maintained this view thereafter.  Although Bailey takes issue with Tillman’s interpretation of the term “displace,” the focus of his argument is that Hamilton’s statement reflected the belief that unilateral presidential removal of officers was undesirable because it would undermine stability in the government.  Hamilton, in Bailey’s view, wanted to “institutionalize a steady and expert administration of the laws.”  This position, Bailey notes, is not necessarily incompatible with Tillman’s interpretation of Federalist No. 77. 

FWIW, it seems to me that the context of the first paragraph of Federalist No. 77 indicates that Hamilton was addressing the situation in which a new President might be interested in replacing, rather than simply removing, an officer.  His argument is that if the President had the exclusive authority to appoint officers, a new President would be likely to make wholesale changes (ie, bring in new people whom he knows or likes better than the old people).  However, the shared appointment power makes this less likely because (1) the President cannot replace an existing officer without the consent of the Senate and (2) the President knows that the existing officer, assuming that he has performed reasonably well, is likely to have the support of the Senate.  This argument doesn’t necessarily say anything about the situation where the President simply wants to remove a troublesome officer and is less concerned about who the replacement might be.  As Tillman suggests, Hamilton may have assumed that the President would ordinarily be unwilling to remove an officer until a replacement had been confirmed.


I don’t know that this necessarily settles the question of what Hamilton meant by the word “displace.”  He could have meant “replace” rather than “remove,” as Tillman argues.  Or  perhaps he meant “displace” in a general sense, but meant “necessary” in a practical, rather than legal, sense.  In other words, because he thought that the President would normally want to replace, rather than remove, he meant that it would be practically necessary to get the Senate’s consent in order to do so.  Or possibly he simply was not thinking about the situation in which the President wanted to remove, rather than replace.  Or possibly he assumed that replacement was the only way, apart from impeachment, to remove an officer (as Justice Story seems to have thought).  Regardless, it seems to me that this paragraph doesn’t say much about Hamilton’s normative views regarding whether the Senate’s consent ought to be necessary in the pure removal situation. 

On the other hand, it does suggest that Hamilton thought it a good thing that Presidents would be restrained by the Senate in replacing officers who were performing well.  Therefore, Bailey has a point when he suggests that Hamilton was no “simple unitarian,” at least if a simple unitarian is someone who believes that energy in the executive necessarily outweighs all other values, including stability in government.  It may not be huge point, but it seems valid regardless of whether Hamilton believed, either before or after he wrote Federalist No. 77, that the President lacked unilateral removal authority.