Recess Appointments Panel this Thursday

This Thursday, October 25, from 9am to 10:30am, I will be moderating a panel discussion at the ABA Administrative Law Conference entitled “Recess Appointments: Legal Challenges to President Obama’s appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board.” The panelists will be Ambassador C. Boyden Gray and Professor Michael Gerhardt, both of whom testified before Congress earlier this year regarding the recess appointments (Gray is also representing the plaintiffs in the legal challenge to the CFPB).

The conference is taking place at the Capital Hilton; registration information is here.



Attorney General Opinions on Recess Appointments

I know what you’re thinking. Where can I find a comprehensive guide to U.S. Attorney General opinions on recess appointments? Complete with handy summaries and links to explanatory posts?

Look no further. Like Tom Lehrer’s musical rendition of the elements, the listing below may prove useful to some of you someday, under a somewhat bizarre set of circumstances.

  Continue reading “Attorney General Opinions on Recess Appointments”

Chief Justice Roberts and the Recess Appointments Clause

I really, truly intend to leave the subject of the Recess Appointments Clause, but, as I was compiling material for a final post to be entitled “The Recess Appointments Clause in One Place,” I came across this interesting and somewhat instructive episode from the Reagan Administration.

On Friday afternoon, January 18, 1985, a young lawyer in the White House Counsel’s office by the name of John Roberts telephoned Herman Marcuse, a very not young lawyer in the Office of Legal Counsel. Marcuse’s memo to the file explains that Roberts:

presented a question about the President’s power to make recess appointments to the Board of Directors of the Export Import Bank. He advised me that the terms of two of the directors would expire on January 20, 1985, and inquired whether the President could make recess appointments to the Board in the morning of January 21, 1985 before the Senate would reconvene from its recess at noon. I asked Mr. Roberts when the recess began, and he stated that it began on January 3.

Marcuse advised Roberts “that the recess period of 18 days was extremely short” and said that in light of “the close and delicate nature of the question,” he would need to consult with his OLC colleagues. Roberts explained that the matter was “rather urgent.” (To those who didn’t go to Harvard Law School, you see, this might not be self evident from a Friday afternoon phone call regarding the constitutionality of an action the President wants to take on Monday morning).

Continue reading “Chief Justice Roberts and the Recess Appointments Clause”

Constitutional Settlement Through a Statute

A few years ago, when there was a great deal of consternation regarding filibusters of judicial nominees, Professor Aaron-Andrew Bruhl published a typically thoughtful article entitled “If the Judicial Confirmation Process is Broken, Can a Statute Fix It?” Bruhl considered a hypothetical statute that would regulate the confirmation process by, for example, requiring the Senate to conduct an up or down vote on a nominee within a particular period of time.

Bruhl concluded that while it would be constitutionally permissible to enact such a judicial confirmations statute, the statute would not be legally binding on the Senate. While the Senate might feel politically or morally obligated to follow the rules set forth in the law, it would “retain unilateral control over its confirmation procedures regardless of what any statute may say” because the principle of cameral autonomy, embodied in the Rules of Proceedings Clause among others, so demands.

Suppose, however, there were a statute which did not purport directly to regulate the Senate’s internal processes, but granted the President temporary appointment authority conditioned on certain occurrences within those processes? For example, the President might be authorized to make a temporary appointment if a nomination had been made, a certain period of time had elapsed and the Senate had  taken no action with regard to the nomination. The authority granted would not be dependent on the existence of a recess, and so the statute would not be vulnerable to some of the constitutional objections discussed in the context of a hypothetical Senate rule.

There could, however, be other objections. For one thing, Professor Rappaport argues that Congress lacks the power to authorize the temporary appointment of superior officers, although it can authorize the occupants of existing offices to assume the duties of other offices when the latter become vacant (as in the Vacancies Act). It also might be argued that the hypothetical statute, while not directly regulating the Senate’s internal procedures, places unconstitutional burdens upon it, and therefore would remain subject to revision under the Rules of Proceedings Clause.

I am not sure that these objections are well taken, but I am also not sure it matters. The Pay Act, for example, would seem to be unconstitutional under the executive branch’s theory of the Recess Appointments Clause (as it has suggested from time to time), yet it has followed the requirements of that statute (well, where it can’t figure out a way to weasel out of them) for a century and a half.

After all, the point of a constitutional settlement is to settle constitutional differences, which means making accommodation for constitutional positions that are arguably wrong. The alternative is to have the dispute settled by an authoritative tribunal or having it remain unsettled. For reasons discussed in prior posts, it seems to me that a constitutional settlement, either through a Senate rule or a statute, is the better alternative.

So I now come to the end of my very long discursion on the RAC.  Hopefully, these many posts have not completely bored my faithful readers, and perhaps they will even contribute in some way to the public good. At this point, however, I think I have exhausted this topic (any myself). I do intend to compile and post a list of sources on the RAC- I think that will be useful to future researchers.

I am also moderating a panel that will focus on current RAC litigation at the ABA Administrative Law Conference in DC at the end of October. More details to follow.


Mort Rosenberg on Recess Appointments

Mort Rosenberg, formerly of CRS and now a Fellow at the Constitution Project, has released a paper entitled: “Understanding the Centrality of the Appointments Clause as a Structural Safeguard of Our Scheme of Separated Powers: The Senate’s Exclusive and Plenary Confirmation Power Trumps Presidential Intrasession Recess Appointments.”

The Executive Summary states:

“The Constitution establishes a procedure for the nomination and appointment of officers of the United States that includes important roles for both the President and the Senate.  The debates of our founding fathers, as well as Supreme Court opinions, explain that these provisions were intended to create important checks and balances on the branches of Government involved.  The Justice Department’s Office of Legal Counsel  opinion, which purports to identify the legal basis of the recess appointments of four individuals to important Government positions this past January, asserts that the President has the unilateral ability to determine the existence of a “recess” for purposes of triggering the President’s recess appointment authority.  This conclusion would appear to undermine the balance of powers that is inherent in the Appointments Clause.  It would also appear to conflict with the constitutional right of the Senate to determine its own rules and procedures.  The use of a pro forma procedure during an intrasession recess of the Senate also raises the unresolved issue of whether any recess appointment can ever be made while the Senate is in such an intrasession adjournment, or instead does this authority only relate to intercessional periods.  While there is no definitive judicial precedent as yet, a review of the constitutional debates, prior court rulings, and the history of recess appointments indicates that the validity of the intrasession recess appointments at issue is questionable, and that compelling arguments may be made that they are invalid.”


Constitutional Settlement through a Senate Rule

Now I will turn to the question of how a new set of rules governing recess appointments, such as those discussed in my prior post, might be put into place. One possibility is that they could be set forth in a new Senate rule.

This would seem to raise at least two constitutional questions. First, can the Senate by rule take away from the President power that he has (or claims to have) under the Recess Appointments Clause? The answer to this, I think, is no. If the Senate wants the President to forbear from exercising his power under the Recess Appointments Clause (except in the circumstances defined by the Senate rule), it will have to dissuade him from doing so by a combination of (1) offering an alternative system that is superior to the current one from the executive perspective and (2) taking retaliatory action if the President should make recess appointments outside of that system. Given the deficiencies of the current system, this does not appear to be an unreachable goal.

Second, can the Senate by rule authorize the President to make temporary appointments when it is not in “recess”? Theoretically, the answer to this is also probably no. On the other hand, the Senate arguably has the power to declare a recess whenever it pleases. Professor Seth Barrett Tillman, for example, argues that the Senate has the power to end a recess appointment simply by declaring a recess and then reconvening in a new session. (See Tillman and Kalt Colloquy on Senate Termination of Recess Appointments, 103 NW U. L. Rev. 286 (2009)).

The alert reader may observe that this is not my view. True, I do not think that the best reading of the Constitution would deem the Senate’s day-to-day adjournment to be a “recess” within the meaning of the RAC. But if the Senate and the President agree to treat particular adjournments as “recesses,” and the House does not object, who exactly would be harmed by this legal fiction? (It certainly no worse than conducting business without a quorum, as both houses routinely do).

Assuming that we can surmount this hurdle, it would seem relatively easy to structure a Senate rule that would achieve the goals we have discussed. The Senate could deem periodic adjournments (eg, the first adjournment of every month) to be a “recess,” and it could “authorize” temporary appointments to fill any vacancy where a nomination had been pending for more than a certain period (which period, as discussed in my previous post, could vary by nomination). The temporary appointment would expire at the next “recess” following the Senate’s confirmation (or rejection) of the nominee or when the Senate returned the nomination to the President without taking action.

Again, I recognize that this approach would take some liberties with the text of the RAC. But unlike current practice, which is also difficult to square with the text, such an approach would actually advance the purposes of the RAC, while balancing the legitimate interests of the Senate and the President. To quote Professor Tillman (regarding his own proposal, to be sure), “the winner here is not the Senate or the President, but it may be us.” (emphasis in original).

The alternative to this approach would be for Congress to enact a statute governing temporary appointments. I will discuss the pros and cons of that alternative in a future post.

Taking the Recess out of Recess Appointments

Another potential means of reaching constitutional settlement with regard to the Recess Appointments Clause would be to design a new set of rules for when and how the President exercises his power under that clause. The question that I will now turn to is whether it would be possible, as a constitutional and practical matter, to do this without a constitutional amendment.

First, though, it’s worth sketching out the rules that might be developed if the interested parties (principally the Senate and the executive branch) sat down to think about it. The most obvious reform would be to take the “recess” out of the RAC. In modern times, the question of whether the Senate is in recess has little if anything to do with the executive ‘s reasons for making recess appointments. As Professor Michael Herz observes, the modern “Senate is simply never out of session long enough for a vacancy . . . truly to need filling before its return.

The real reason that Presidents use the RAC today is not because of the Senate’s unavailability, but because of its inability or unwillingness to act on nominations in a speedy fashion. Although the party that controls the White House always feels this problem with more acuity, I think there is a widespread recognition that it is a problem.

A better approach would be to tie the President’s ability to make temporary appointments not to whether the Senate is in recess, but to whether the Senate has unreasonably delayed in acting on a nomination.

But how much delay is “unreasonable”? One rough way of making this determination would be to see how long it took the President to make the nomination in the first place. If the President moves quickly to make a nomination to fill a vacancy, this is some indication of urgency. Of course, no matter how quickly the President acts, the Senate needs some time to perform its advice and consent function. Thus, the Senate might be given, say, the longer of 60 days or the period that it took the President to make the nomination (there might also be an upper time limit of a year or so).

Once the advice and consent process has dragged on long enough, the President would be authorized to make a temporary appointment. There is, however, no reason why this appointment should last for up to two years, as current practice would permit. Rather, it would make sense for the appointment to expire when the Senate returns nominations to the President pursuant to Senate Rule XXXI. The return of these nominations provides a break in the process, giving the President an opportunity to decide whether to resubmit a nomination or nominate someone else. It would be logical for the temporary appointment likewise to expire, since the President may wish (and the Senate may prefer) a new temporary appointee.

Other questions that should be addressed in designing a new set of rules include: (1) should there be a limit to the President’s ability to make successive temporary appointments to fill the same vacancy and, if so, what should it be? (2) should the Senate’s failure to confirm a nominee over a certain period of time or after two or more re-nominations amount to a rejection? (3) should there be an opportunity for the Senate, either as a body or through the committee of primary jurisdiction to provide “advice,” not merely consent, to the President (e.g,, by providing names of individuals who would be broadly acceptable as either permanent or temporary appointees); and (4) should the President be required to consult with the Senate before submitting nominations and/or making temporary appointments?

In my next post I will consider whether rules of this general type could be imposed through a Senate rule.


CRS on Pro Forma Sessions

Earlier this month Senator McConnell placed in the Congressional Record a CRS memorandum regarding pro forma sessions (hat tip, Mort Rosenberg). The memo makes three points of interest to those who are following the legal challenges to President Obama’s January 2012 recess appointments.

First, CRS notes that the term “pro forma” relates to the reason for holding the session (i.e., for sake of formality), but “does not distinguish the nature of the session itself.” A “pro forma session is not materially different from other Senate sessions.”

CRS indicates that a pro forma session has the same authority to act as any other type of session: “Should the Senate choose to conduct legislative or executive business at a pro forma session, it could, provided it could assemble the necessary quorum or gain the consent of all Senators to act.” (I infer from this, although it is not completely clear, that if a majority of Senators attended a pro forma session, they could set aside any unanimous consent agreement that restricted the pro forma session).

Second, CRS identifies instances where the Senate conducted pro forma sessions only for periods of more than 30 days, and the Senate Executive Clerk did not return nominations to the President under Senate Rule XXXI. Since that rule, I have argued before, provides the clearest line of demarcation between session and recess for purposes of the Recess Appointments Clause, this is evidence that Senate practice does not treat a pro forma session as a recess.

Finally, CRS identifies a number of statutory provisions that require computing periods of congressional sessions for purposes of whether a particular executive action or authority has become effective. For example, under the Congressional Review Act, certain agency rules do not become effective until the Senate has had 60 days of “session” to act on a joint resolution of disapproval. For these purposes, days of “pro forma sessions” are counted, a practice accepted by both the legislative and executive branches.