Intrasession Recess Appointments Case Should Go to the Supreme Court

Friday, a panel of the D.C. Circuit invalidated President' Obama's expansive assertion of a power to bypass the normal Senate role on major appointments by filling vacancies during "intrasession recess appointments", i.e., any time within a legislative session when the Senate is not actively doing business (a "legislative session is comparable to a year -- there are typically two, and occasionally three sessions in a Congress).  The decision was unanimous on the lack of power to make intrasession appointments, although there was a dissent on another issue.  All three members of the panel were appointed by Republican residents, but confirmed by bipartisan votes in the Senate.  The decision is based on the text of the Constitution and does not turn on any of the facts of any of the individual appointments.  If upheld at the Supreme Court, it will limit the power of any President, not just this president.  I think the decision is the right one, but the odds are high that the issue will wind up before the Supreme Court. The case is Noel Canning v. NLRB.

Background

If a party to an NLRB proceeding does not comply voluntarily with the NLRB's orders, the NLRB needs to go to court to get an order of enforcement.   But a federal court cannot enforce an NLRB decision if the NLRB had no authority to reach its decision.  The Supreme Court decided that in New Process Steel, L.P. v. NLRB (2010) — Justice Stevens writing for an otherwise "conservative" 5-4 majority and Justice Kennedy writing the dissent — decided that NLRB must have three validly appointed members for its orders to be enforceable in federal courts.  At the time the NLRB reached its decision against Noel Canning, the NLRB had two members whose appointments had been ratified by the Senate and three on purported recess appointments by President Obama as to which there had been no advice and consent of Senate .

Language of Constitution

“[t]he 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.” Art. II, § 2, cl. 3.  It's very clear that this means the President can make "intersession appointments", i.e., appointments during the period between sessions of the Senate when the Senate is by definition not in session.  The issue is whether the President can make them during breaks within a session, such as on holidays or weekends, or conceivably even in the dead of night.

Arguments and the Court's Opinion

The NLRB argued that Presidents can pretty much do what they want.   Unfortunately that put them in an untenable position, similar to that which bedeviled the government in the Obamacare litigation, of arguing for a power as to which there is no cognizable limit, for essentially doing away with any separation of power or other check and balance relating to the issue. "The Board never states how short a break is too short, under its theory, to serve as a “recess” for purposes of the Recess Appointments Clause."

The expansive approach to intrasession appointments has been based on nothing more substantial than a memo, which the panel rejects as vague and flimsy, written by Warren Harding's Attorney General — one of the weaker sources one can imagine,  given the patronage nature of appointments in that era and the corruption that took place in that particular administration and even within the Department of Justice during his tenure.

Taking a largely originalist approach, the panel distinguishes "the Recess" which the Constitution uses twice from mere "adjournments" which it refers to six times.   The word "the" is interpreted to refer to a specific single recess, that between sessions, not just to "a" recess, or "any" recess.  The "Recess" is always opposed to a "Session" which refers to the usually two or sometimes three sessions per Congress and thus means what occurs outside of a session; while "generic break[s] in proceedings" within a session, the panel opines, are captured by the word "adjournments" or variations thereon.

The Constitution specifies that the appointment expires "at the end of the next Session".  This might be considered ambiguous because the word "next" makes sense whether the appointment is made between two sessions, or during a "break" in the first of two.  But I don't think defenders of an intrasession appointment power can get much mileage of this.  First, it doesn't make sense applied to an appointment made within the last session of a Congress.  No recess appointment has been understood to run past the end of a Congress and through the first session of a subsequent Congress.  And it makes little sense that an appointment made in the first of two sessions last longer than an inter-session appointment.  So the best reading is that it only refers to appointments between sessions.  Second, they're still left with the extreme position that the President has power which, fully exercised, would render the Constitution's provisions about the advice and consent of the Senate a nullity or, at best, mere act of grace by a benevolent President, an implausible construction of the Constitution based on everything we know about the importance of separation of powers to the Framers, and an unwise one as well:  as the panel writes, "The power of appointments to offices was deemed the most insidious and powerful weapon of eighteenth century despotism  Freytag v. C.I. R., 501 U.S. 868 883 (1993)."

The Government argued that limiting the President's intrasession appointments would upset the balance of power between President and Senate.  The President's spokesperson and his allies are likewise maintaining this argument in their public advocacy to overturn it.  But the court coolly points out that that intrasession appointments were so rarely used for the first 160 years of Constitutional government, that you can count the number of intrasession Recess Appointments on one hand — implying that either it's implausible that we had 160 years of no balance or we got along fine being so unbalanced..  Really, the panel says, it's the government's interpretation that would defeat the careful separation of powers reflected in the Appointments Clause. 

This seems to me to be absolutely right.  Recess appointments are just another example of the modern expansion of executive power, a negative, not a positive, development for Constitutional government.  If a President has the power to make appointments any time the Senate is not actively doing business, then there is no "balance" outside of the President's will.  A President could fill every open Cabinet position, every agency head, every judicial vacancy on the first weekend of a legislative session.  Whether one might agree or disagree that that is a better method of governing, it is in no way a "balance" between Senate and President.  The riposte might be that the voters can express their views at the next election if they approve of that style of governing, but that, of course, is not the case regarding a lame duck like President Obama.  There really isn't any way to defend the power to make intrasession recess appointments that ensures a "balance" between President and Senate.

Why the Case Should Go to the Supreme Court.

The panel notes a conflict with an 11th Circuit case, Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005) that reached an opposite conclusion of the President's intrasession recess appointment power. That case involved a challenge to whether Bush 43's appointment of a judge to the 11th Circuit during an 11-day "recess" in the Senate was valid.  The court heard the matter en banc and decided, mainly relying on definitions of the word in dictionaries from the mid-18th century, that it was. 

The Noel Canning panel contends that the 11th Circuit defined the issue without reference to whether the Senate was in session, which served to eliminate the issue itself and thus nothing the 11th Circuit said should be given any weight.  This is a little facile.  The 11th Circuit did consider, like the D.C. Circuit, whether "the Recess" means one specific kind of recess, that at the end of a legislative session, or whether "the Recess" means a generic recess, as in "the dog is a quadruped".  They expressed their view in a double negative: "We do not agree that the Framers' use of the term 'the' unambiguously points to the single recess that comes at the end of a Session.  Instead , ... 'the Recess ' ... could just as properly refer generically to ... intersession or intrasession ...."  Personally, I find that reasoning unpersuasive; it's nothing more than presuming what the President did was Constitutional and placing on the challenger a  burden to convince them otherwise.  That is not what I think is the role of the courts in the separation of powers.  I think the Court is meant to patrol the way governmental units wield their power to make sure they adhere to the Constitution at all times. That one branch decides its action is Constitutional is of little importance, other branches and other Constitutional actors  have their view as well, and the Court has the job of striking the right balance.

But it's a direct conflict between the two circuits, so it provides a very strong basis for the issue go to the Supreme Court.

What struck me most about the two decisions is that Noel Canning does not directly address a Supreme Court opinion discussed in Evans, which is, while not completely on point, certainly inconsistent with the reading of Noel Canning.   Wright v. U.S., 302 U.S. 583 (1938) repeatedly uses the words "adjournment" and "recess" either interchangeably or in the opposite manner of that divined by the D.C. Circuit.  For just one example, at 598, the Court says:

Paragraph 4 of section 5 of article 1 provides: 'Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.'  It will be observed that this provision is for a short recess by one House without the consent of the other 'during the Session of Congress.' Plainly the taking of such a recess is not an adjournment by the Congress. The 'Session of Congress' continues.

(Italics added).  As Evans notes "the question of the meaning of the word "Recess" in the Recess Appointments Clause was not before the Court. We note, however, that ... [this] usage by the Supreme Court tends to support our accepting the President's interpretation that a "Recess" includes a break during a Session."  In response, Noel Canning simply repeats the panel's view that "the Constitution uses 'adjournment' to refer generally to legislative breaks. It uses 'the Recess' differently and then incorporates the definite article. Thus, the Eleventh Circuit’s interpretation of  'adjournment' fails to distinguish between 'adjournment' and 'Recess,' rendering the latter superfluous and ignoring the Framers’ specific choice of words."

What Might Happen at the Supreme Court

Superficially, one might assume that if Noel Canning goes to the Court, as it most likely will, Justice Stevens's replacement, Justice Kagan, will side with the New Process Steel dissenters and uphold the President's agenda, but I think that underestimates not only her, but Justice Kennedy as well as the rest of the Court. 

In her capacity as Solicitor General prior to taking the bench, Justice Kagan provided the Supreme Court a letter in connection with New Process Steel in which she stated that "the Senate may act to foreclose [recess appointments] by declining to recess for more than two or three days at a time over a lengthy period" - pointing to pro forma sessions that the Democratic-controlled Senate employed in 2007 to block George W. Bush from making recess appointments (in particular, recess appointment of the then-chairman of the NLRB).  It is certainly conceivable, but hard to imagine, that Justice Kagan would both fail to recuse herself and would abandon her prior public position.  

When Justice Kennedy concluded his dissent in New Process Steel by observing that the majority's reading left NLRB "defunct for extended periods of time", one can imagine that he might embrace a functional defense of intrasession appointments, upholding them to the extent needed to keep a Congressionally created organ of government functioning (although that only applies to one of the three NLRB appointments at issue in Noel Canning).  I don't think there is a textual basis for that, however.  And unlike New Process Steel, Noel Canning won't present a statutory construction issue of Congress's intent, but a major separation of powers issue that will fairly obviously determine to a great extent the scope of all Presidents' power to bypass the Senate on appointments.  I don't think political considerations will drive the decision in so simplistic a way.  And for the same reasons, I doubt the Court will  uphold broad power in the fashion of Evans.  I don't think an argument for unlimited power that the Government has been maintaining will go anywhere at the Court. 

Defenders of any sort of recess appointment power would have an uphill battle, in my opinion.  Assuming the rest of the Justices remain aligned as they were in New Process Steel, the Executive branch would have to pull off a triple play of sorts: (1) getting Justice Kagan not to recuse herself, (2) persuading her to adopt a position at odds with her prior public position, and (3) persuading Justice Kennedy not to go with the rest of the conservatives. If Justice Kagan does recuse herself, and the Court splits 4-4, then the result in Noel Canning would stand as it is. So the odds seem to favor an affirmance.