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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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Recess Appointment News

The Justice Department will not seek en banc rehearing of the D.C. Circuit’s decision in Noel Canning, but will seek certiorari instead (the deadline for filing is April 25). Assuming the Court grants the petition (which, pretty much everyone seems to agree, seems likely), arguments will be heard in the fall. It is worth noting that the NLRB recess appointments at issue will expire, even under the administration’s legal theory, no later than January 2014.

A forthcoming student note, by Amelia Frenkel of NYU Law School, argues that the Recess Appointments Clause does not apply to newly-created offices because such unfilled offices are not “vacancies” or are not vacancies that “happen” within the meaning of the RAC. It follows from this argument that President Obama’s recess appointment of Richard Cordray to become the first director of the CFPB was invalid.

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Six Answers for Six Puzzles

Over at The Originalism Blog, Professor Michael Ramsey has given his answers to Professor Seth Barrett Tillman’s “Six Puzzles” on the Constitution’s various uses of the terms “officers” and “offices.” FWIW, I tend to agree with all of Ramsey’s answers with one possible exception.

That relates to the first puzzle, which involves the Succession Clause’s provision that “Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President . . . .” The question is whether the term “Officer” encompasses legislative officers (if the answer is no, then it was unconstitutional for Congress to place the Speaker of the House and the President Pro Tem of the Senate in the line of succession).

Ramsey and Tillman believe that because the Succession Clause uses the broad term “Officer,” rather than a possibly narrower formulation such as “Officer of the United States” or “Officer under the United States,” as the Constitution does elsewhere, legislative officers must be covered. Given the Constitution’s varied usages of the terms “officer” and “office,” I find the term ambiguous. Structural and other evidence casts doubt on whether legislative officers were meant to be included. For example, in Article VI the Oath Clause applies to “Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.” I find it difficult to believe that the Framers deliberately decided to exclude non-member legislative officers from being bound by oath, yet decided to include them in the Succession Clause. It seems more likely that the term “Officers” standing alone was understood to include either executive officers only, or both executive and judicial officers, but that legislative officers were not understood to be “Officers” in the same sense, or were simply considered so unimportant as to be not worth mentioning.

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The Nuclear Option, the Law of the Senate and the Conscientious Senator

This is my final post (at least for this Congress, hopefully) on the filibuster and the entrenchment of Senate rules. For the first 9 entries in this series, see below:

Legal Scholar Letter to the Senate on Procedures for Changing the Rules

Professor Bruhl and Senate Continuity

Professor Chemerinsky and Senate Precedent on Changing the Rules

Senate Rules from the Internal Point of View

Entrenchment and the Academic “Consensus”

Entrenchment Reconsidered (Part I)

Entrenchment Reconsidered (Part II)

Professor Chafetz and the “Constitutionally Conscientious Senator”

Did the Senate Flub Its Cinderella Moment?

In this post, I will consider the so-called “nuclear option,” its legality or legitimacy under the law of the Senate, and how a “constitutionally conscientious Senator” should vote with respect to its exercise.

The “nuclear option” (also sometimes called the “constitutional option”) may be defined as the use of a parliamentary ruling to declare the Senate rules unconstitutional insofar as they require a supermajority to end debate on a proposed change to the rules. If such a ruling were upheld by a simple majority, it would no longer be possible for a minority of senators to block rules changes (depending on the scope of the ruling, either at the beginning of a Congress or at any time). This would effectively end the (allegedly) unconstitutional entrenchment of the Senate rules claimed by the signatories to the December 12 legal scholar letter.

As explained below, I believe that the “nuclear option” is most reasonably understood as illegal under the existing law of the Senate, in the sense that its use would require overruling a substantial body of Senate precedent. Furthermore, it is believed by most senators, including some that would be willing to invoke the nuclear option if need be, that its use would entail, at the very least, substantial institutional costs in terms of the stability and perceived legitimacy of the Senate’s legal system. At the most, the nuclear option would effectively destroy the Senate’s existing legal system and require the creation of a new system of rules and precedents more or less resembling the House’s majoritarian procedures.

The Senate has previously declined to exercise the nuclear option on a number of occasions, including in 2005 when the Republican majority considered using it to abolish the filibuster with respect to judicial nominations and, most recently, on January 24, 2013, when the Democratic majority considered using it to enact major reforms to the filibuster generally. The evidence from these episodes indicates that many senators, including the “swing senators” (majority senators who refused or were reluctant to support the use of the nuclear option), were concerned about both the legitimacy of the nuclear option under the law of the Senate and the practical effects that it would have on the Senate as an institution.

Rather than trying to convince senators that they misunderstand the Senate’s own traditions and precedents, or that they overstate the likely institutional consequences of the nuclear option, it seems to me that the scholars and academics who have opined on these issues would provide a more useful service to the Senate by proposing constitutional solutions that can reasonably be achieved under the Senate’s existing rules. At the conclusion of this post, I suggest one possible solution.

Continue reading “The Nuclear Option, the Law of the Senate and the Conscientious Senator”

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House Democrats Support BLAG’s Standing in DOMA Case

Probably the most important part of the Bipartisan Legal Advisory Group’s jurisdictional brief in U.S. v. Windsor (the Supreme Court case on the constitutionality of the Defense of Marriage Act) is the first footnote (page ii), which states:

The Bipartisan Legal Advisory Group articulates the institutional position of the House in all litigation matters in which it appears. The Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. While the Democratic Leader and Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases, they support the Group’s Article III standing.

(emphasis added).

The fact that the House Democratic Leadership supports BLAG’s standing to defend the constitutionality of DOMA tells the Supreme Court, in no uncertain terms, how vital the House considers its right to defend the constitutionality of statutes where the executive branch refuses to do so.  If the Court is looking for an “easy out” from this case, this makes it harder. Although it is arguable that the House Democrats are only supporting BLAG’s “Article III standing,” as opposed to prudential standing requirements that the Court might decide to apply, it is even more noteworthy that they are supporting BLAG’s standing, not just the House’s. The House Democratic Leadership evidently agrees that BLAG was properly authorized to represent the House in this litigation, which is a key jurisdictional question.

Full disclosure: I am representing 10 Senators in this case on an amicus brief in support of DOMA’s constitutionality.

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Tillman’s Puzzles for Amar (or Who You Callin “Atextual”?)

In this article, Professor Seth Barrett Tillman has six puzzles for Professor Akhil Amar:

Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers?

Puzzle 2. Does Impeachment Extend to Former “Officers”?

Puzzle 3. Who are the “Officers of the United States”?

Puzzle 4. Is the President an “Officer of the United States”?

Puzzle 5. Is the Presidency an “Office . . . under the United States”?

Puzzle 6. Is “Officer of the United States” Coextensive with “Office under the United States”?

Tillman explains the background as follows:

The Constitution of 1787 uses a variety of language in regard to “office” and “officer.”

It makes use of several variants on “office under the United States,” and it also uses “officer of the United States,” “office under the Authority of the United States,” and, sometimes, just “officer” without any modifying terminology. Why did the Framers make these stylistic choices (if a choice it was)?

(And what was the Constitution referring to in Article VI’s obscure “public trust under the United States” language?)

From time to time commentators have suggested answers. One such view was put forward in 1995 by Professors Akhil and Vikram Amar. They opined that each of these categories were indistinguishable: each category referred to Executive Branch and Judicial Branch officers, including the President (and, apparently, the Vice President).

I contest their atextual position.

If you are interested in the “officers” dispute, or if you just want to know where the bodies are buried … this paper is for you. “Six Puzzles for Professor Akhil Amar.” Sometimes the title says all you really need to know…

Over at the Originalism Blog, Professor Michael Ramsey says he may take stab at solving these puzzles. I hope he gets them right, or Gotham City is DOOMED!

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Noel Canning Timing

I hear through the grapevine that the Justice Department has decided not to seek en banc review of the Noel Canning decision, but instead will petition for cert on a non-expedited basis, meaning that the case would likely be heard by the Supreme Court next term.

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Recess Appointments Issue Could Reach SCOTUS Sooner than Expected

As explained by the Blog of the Legal Times, an emergency petition has been filed with Justice Ruth Bader Ginsburg raising the validity of the recess appointments to the NLRB. The petition was filed by Paul Clement on behalf of a company that is resisting an NLRB effort to require it to rehire striking nursing care workers in Connecticut. Clement argues that the recess appointments issue will inevitably reach the Supreme Court following the D.C. Circuit’s decision in the Noel Canning case so (I guess) the Court might as well go ahead and consider the issue now.

Justice Alito’s sister appears as counsel on the application which means, I assume, that he would have to recuse himself from the case.

Update: after Justice Ginsberg denied the application, Clement filed the application with Justice Scalia.

Update 2: That didn’t work either.

 

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Did the Senate Flub its Cinderella Moment?

On January 24, 2013, the Senate adopted certain rules changes that, according to published reports, will modestly restrict the use of the filibuster, but will not fundamentally alter the minority’s ability to block cloture on matters covered by Rule XXII. It accomplished these changes by adopting S. Res. 15, which provided a new standing order, and S. Res. 16, which amended the standing rules of the Senate. In addition, the Senate voted down S. Res. 5, offered by Senator Harkin, which would have made more extensive changes to the filibuster.

Professor Akhil Amar is very upset by these developments. According to Amar, “nothing has prevented the Democrats, legally speaking, from exercising their constitutional right (nicknamed the ‘nuclear option’) to insist, by a simple majority vote, that simple majorities should rule in the Senate.”

This strikes me as an oversimplification of Amar’s own position. As suggested in my last post, Amar’s position has not been that the Senate majority is entitled to insist on majority cloture as a pure act of will (or, as Professor Chafetz puts it, by the “application of brute force”). Rather he has argued that each senator has the “right and duty” to “adjudicate” whether “Rule 22 has in fact come to operate as an improper rule of decision rather than a proper rule of debate.”

The Senate may not have framed the legal issues in exactly the same way, but its debate over amending the rules certainly encompassed the questions of whether Rule XXII had been improperly used to block, rather than to facilitate, debate and whether the rules changes would better enable it to fulfill its intended purpose in the future. Professor Amar may not agree with how the Senate resolved these issues, but at least he should acknowledge that it grappled with them.

If Amar has a legitimate gripe, “legally speaking,” it is not with those who opposed the use of the “nuclear option.” Rather it is with the legal argument made by those who advocated the use of this option (which they prefer to call the “constitutional option”).

Senator Harkin, for example, asserted that “[e]ach new Congress—each time the Senate convenes after a new Congress forms—can by majority vote change its own rules.” (S254) This he contrasted with “attempting to change the rules in the middle of a Congress,” which he views as improper. See id. (“I mean, you can’t go changing rules every other week”); see also id. at S267 (Senator Udall) (“I don’t think that looking at our rules and amending them by a majority vote at the beginning of a Congress is dangerous”).

To bolster his legal position, Senator Harkin quoted from the December 12 letter (which, he took pains to note, was signed by “very prominent Republicans” Charles Fried and Michael McConnell). The December 12 letter endorses the distinction between changing the rules at the beginning of a new Congress and changing them at any other time, and Senator Harkin accurately quotes the letter in support of this proposition.

However, as we have seen, there is little constitutional merit in this proposition. Professor Amar agrees (though not for exactly the right reason). Two years ago he mocked the idea that “the Senate like Cinderella [has] the power to transform itself in only one limited moment, at the opening of a new Congress.” Amar found ridiculous the idea that there is something “magical” about “Day One” of a new Congress (a day which, he aptly noted, could be indefinitely extended by the Majority Leader in a “separate piece of magic”).

Continue reading “Did the Senate Flub its Cinderella Moment?”

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Professor Chafetz and the “Constitutionally Conscientious Senator”

Before considering the Senate’s action last week in amending its rules, I want to summarize one additional anti-entrenchment school of thought. We have already discussed the theory of the December 12 letter, which holds that a simple majority must be able to obtain a rules change at the beginning of a new Congress. An alternative theory advanced by Professors McGinnis and Rappaport is that a simple majority must be able to obtain a rules change at any time. As we have seen, there are significant problems with each of these alternatives, not the least of which is its inconsistency with Senate practice and precedent.

Professor Josh Chafetz, in an article entitled “The Unconstitutionality of the Filibuster,” suggests a third anti-entrenchment approach. Chafetz acknowledges that the Constitution does not require “immediate fulfillment of every wish of the legislative majority,” and he notes “all procedural rules delay the implementation of majority will to some extent, and all rulemaking has at least something of an entrenching effect.” However, he draws a distinction between “acceptable procedural rules” and “unacceptable permanent minority obstruction.”

Chafetz argues that the Senate’s “purported history” of unlimited debate cannot justify the current Senate rules because “the modern filibuster is not about debate.” Modern practice under Senate Rule XXII, he contends, is really a de facto requirement of 60 votes to pass any measure. In contrast, during the 19th century, although there were no formal limits on debate, it was rare for senators to use the privilege of unlimited debate as a means of blocking legislative measures and even in the 20th century, when the ability to filibuster became more formalized, it was generally used only for measures intensely opposed by the minority (particularly civil rights legislation) until the 1970s.

In Chafetz’s view, a “constitutionally conscientious Senator” would be justified in concluding that the current rules cross the line (which he acknowledges to be imprecise) between acceptable procedural rules and unacceptable minority obstruction. Professor Akhil Amar has expressed a similar view:

It is the right and duty of each senator to adjudicate for herself whether Rule 22 has in fact come to operate as an improper rule of decision rather than a proper rule of debate. And in adjudicating that question, the Senate, operating as a constitutional court of sorts, acts by majority rule, just as the Supreme Court itself does when adjudicating constitutional (and other) questions.

Akhil Amar, America’s Unwritten Constitution 368-69 (2012).

Chafetz likewise stresses that the Senate would be performing an adjudicatory function such as a court performs when it exercises the power of judicial review, as opposed to the “application of brute force” by the Senate majority to “displace legitimate rules.” As such, he argues that this function can be performed at any time and is not limited to the beginning of a new Congress.

Chafetz proposes the following constitutional principle to guide the Senate in determining the validity of a legislative rule: “a determined and focused legislative majority must be able to get its way in a reasonable amount of time.” This, he notes, is a “standard, not a rule.” Thus, “[a] constitutionally conscientious Senator would have to exercise her judgment in determining what the line should be between acceptable procedural rules and unacceptable permanent minority obstruction.”

I think Chafetz is quite right to focus on the judicial nature of the Senate’s function here and to approach the issue from the perspective of the “constitutionally conscientious Senator.” However, I believe that such as senator would be (rightfully) skeptical of the theory Chafetz advances.

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