Larry Tribe on Intrasession Recess Appointments; A Tale of Two Administrations

Reading up on the intrasession recess appointment issue I wrote about a couple of days ago, I came across a couple of writings on the subject from the eminent Constitutional law professor Laurence Tribe, whom I've always admired, so I looked to them for guidance.  I was disappointed.

In 2004, Professor Tribe submitted an amicus brief to the Supreme Court on behalf of the late Senator Edward Kennedy, calling on the Supreme Court to grant certiorari in the Evans v. Stephens decision and declare all intrasession recess appointments unconstitutional. The brief is here; an article by a co-author summarizing its argument is here, which precisely foreshadows Noel Canning when it states: “First … the term ‘the Recess’ refers solely to recesses between "Sessions" of the Senate, and not to intra-session adjournments….  Second, even if the Senate break that began last Friday were deemed ‘the Recess,’ the vacancy in the office of U.N. Representative did not ‘happen’ during that recess—it occurred instead while the Senate was sitting.”  I’ll call the brief “2004 Tribe” for the rest of this post.

In January of last year – I’ll call that “2012 Tribe” – Professor Tribe wrote an op-ed in the New York Times, which does not mention his earlier position, but defends the Constitutionality of President Obama’s intrasession recess appointments at issue in Noel Canning (and also that of Richard Cordray to head the CPFB). 

I was disappointed in seeking guidance because the two writings are pretty much contradictory.  The former is virtually identical to Noel Canning in rejecting the Constitutionality of intrasession recess appointments and the latter argues the President has an overriding duty to make them if laws aren’t getting enforced.  The 2012 article is really just making the "inherent power" argument that gets deployed whenever the Executive branch has expanded its power in American history in Constitutionally controversial fashion. It's always there and it's always conclusory, and it's used far too often, in my opinion, for a healthy Constitutional government. 

Here are some of the arguments 2012 Tribe makes, juxtaposed against 2004 Tribe’s statements on the same point.

2012  Tribe: “the scant judicial doctrine on recess appointments will surely benefit from careful assessment of text, history and structure….”

                    “The President’s right to [make intrasession recess appointments] is clearly stated in the Constitution ….”

2004 Tribe:  “the text, structure, purpose and function and pre-1921 history of the Recess Appointments Clause all confirm … that the President may not make ‘recess’ appointments during intra-session Senate breaks….” Amicus Brief at 11.  Pages 13-15 of that brief lay out the textual interpretation, which foreshadows very accurately that of Noel Canning.

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2012 Tribe says “Past practice … points the way. Presidents have long claimed, attorneys general have long affirmed and the Senate has long acquiesced to the president’s authority to make recess appointments during extended breaks within a Senate session.”

 2004 Tribe: “Nothing could be further from the truth.  In fact, both Judge Pryor’s appointment and the Government’s novel legal interpretation break with over 200 years of Executive Branch practice and Department of Justice’s interpretations ….”  Amicus Brief at 5. The pro-Presidential power position is described as “a sea change” and “groundbreaking” development that only occurred “over the past two decades”. 

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2012 Tribe quotes Alexander Hamilton:  “[The Recess Appointments Clause] aims, as Alexander Hamilton wrote in Federalist No. 67, included facilitating appointments ‘necessary for the public service to fill without delay.’”

2004 Tribe quotes a little bit more of Federalist 67:  “In Federalist No. 67, Hamilton explained that the recess appointment power was designed ‘to be nothing more than a supplement to’ the Appointments Clause, for use when ‘it might be necessary for the public service’ to fill without delay certain vacancies that ‘might happen in [the Senate’s] recess.’ The Recess Appointments Clause was added because ‘[t]he ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate.’ The Federalist No. 67, at 408 … The clear implication, of course, is that recess appointments would be ‘necessary,’ and thus permissible, only outside the ‘session of the Senate.’” Amicus Brief at 16.

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2012 Tribe: “attorneys general going back to Harry M. Daugherty in 1921 have held that the Constitution authorizes such appointments.”

2004 Tribe: “Daugherty’s ‘functional’ test misinterprets the clause.” Amicus Brief at 11.

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The three NLRB members (and, for what it’s worth, Richard Cordray, the appointed head of the CPFB), were nominated on Wednesday January 4, 2012.  Noel Canning explains that the Senate had convened the preceding day, as required by Section 2 of the Twentieth Amendment, to begin the new session, so these could not have been intrasession appointments. “[T]he Senate was operating under a unanimous consent agreement which provided that the Senate would meet in pro forma session every three business days from December 20, 2011 through January 23, 2012”  So even if the pro forma sessions are called “shams” and ignored, from January 4 to 23 is only 19 days. 

2012 Tribe says such appointments, made during no more than a 19-day recess, struck “a badly needed blow for checks and balances with strong support both from the text and the original purpose of the recess appointment clause.”

2004 Tribe:  “Before 1982, Presidents virtually never made intra-session recess appointments during Senate adjournments of shorter than one month.”  Amicus Brief at 10.

“There is no evidence that the Framers thought it necessary to empower the President to make unilateral appointments while the Senate was adjourned within its session for short periods [referring to breaks such as “two weeks”]”  Amicus Brief at 17-18. 

“It is absurd to imagine that the Framers drafted the Recess Appointments Clause to provide the President such a power, to be exercised during intra-session Senate breaks lasting a fortnight, or a weekend, or overnight.”  Amicus Brief at 12.

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Although I have some sympathy for the functional argument, it's difficult to make the case textually, and it doesn't come across well when its advocate has to contradict himself to make it.