Saturday, January 26, 2013

Who Bears the Blame for the Recess Appointment Roadblock?

By Mike Dorf

How outraged should Democrats be about Friday's ruling in Canning v. NLRB? Quite a bit, I think, but it's not entirely clear to me that the ire should be directed entirely (or even mostly) at the DC Circuit panel that decided the case. Oh sure, it's easy to call the Republican appointees hypocrites or hacks, as the inimitable Charlie Pierce does over at Esquire. And maybe he has a point. Just as it was awfully suspicious that five conservatives discovered equal protection and renounced states' rights in Bush v. Gore, so too, one might be inclined to raise an eyebrow or two about the fact that a conservative panel waited for a Democratic Presidency to invalidate nearly all recess appointments. But even if there's more than a kernel of truth in such accusations, one can find a fair number of corresponding suspiciously timed Democratic flip-flops and more to the point, being a hypocrite or a hack doesn't necessarily make you wrong.

So, is the ruling in Canning wrong? A year ago, I wrote that the constitutional scope of the President's recess appointment power presents a hard question. That's especially true when the Senate is in pro forma session because a constitutional rule that pro forma sessions count as recesses requires a difficult line-drawing exercise.  Moreover, given the need for the cooperation of the House of Representatives in formally adjourning, there is a political check on the power of the Senate to keep itself in session as a means of frustrating a President's recess appointment power. Were it not for Republican control of the House, the Senate Dems could have formally adjourned the Senate with only a simple majority.

That political fact counts for a lot but not everything because of the breadth of the DC Circuit opinion in Canning.  It doesn't just say that pro forma sessions aren't recesses.  It says that intra-session adjournments aren't recesses.  Can that be right?

If I were starting from first principles, I might well agree with the DC Circuit. The Senate's power to confirm principal officers is a check on executive administration, while the power of the President to make recess appointments appears to be a kind of emergency gap-filler. At its core, the DC Circuit opinion in Canning makes that point.  In cabining the recess appointment power, it says that a constitutional gap-filler should not be used to circumvent a legislative check on executive administration.

I nonetheless think the DC Circuit may have gotten it wrong because we are not starting from first principles. Perhaps Judge Sentelle ends up with the wrong answer because he begins with the wrong question.  He begins his constitutional analysis by quoting the Supreme Court's opinion in DC v. Heller for the proposition that a constitutional provision should be construed by "look[ing] to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution." It's true that the Court in Heller said that, but there is so much nonoriginalist jurisprudence that has emanated from the Supreme Court--including from the Justices in the majority in Heller--that one simply cannot take seriously the idea that Heller established originalism as the official methodology of constitutional law.

Indeed, even in Heller, the Court gave extensive consideration to post-1791 evidence of the meaning and proper construction of the Second Amendment.  And despite its originalist cant, so does the DC Circuit in Canning.  The problem is what the court does with that evidence. The DC Circuit finds virtually no instances of intra-session recess appointments before World War II and discounts their extensive use since then. Was that discarding appropriate?

The DC Circuit cites the legislative veto case, INS v. Chadha, for the proposition that even a practice that has gained wide currency will be held invalid if it contradicts the Constitution's plain language.  That's fair enough. Congress had come to insert legislative vetoes in numerous laws and the Court nonetheless found it inconsistent with Article I, Section 7.  But Chadha surely doesn't stand for the proposition that the experience of the political branches counts for nothing at all.  Amidst the DC Circuit's excessive reliance on the Framers in Canning, the court loses track of an important principle traceable to Hamilton in Federalist No. 82:
THE erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. 'Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.
Hamilton's immediate concern was federalism but his point is broader: the Framers didn't know how the Constitution would work in practice.  Experience under the Constitution "liquidate[s]" its "meaning."  Of course, Judge Sentelle et al are right that experience can't change the meaning of language that was and remains clear, but forgive me if I think there's ambiguity in the key words on which his opinion relies: "the" and "happen".  Reading the Canning opinion, one wonders whether the DC Circuit means to render respectable former President Clinton's parsing of the meaning of "is".

None of this would matter much were it not for the filibuster.  What makes the Canning opinion so deadly is the fact that it doesn't protect a legislative check on the executive; it enables a determined blocking minority in the Senate to frustrate not only the President but the majority of the country. And that, of course, is exactly what's going on here.  Were it not for the filibuster and other super-majoritarian procedures in the Senate, the Democratic majority would simply confirm President Obama's nominees.  The President has only had to resort to recess appointments in the first place because of the Republican blocking minority's obstinacy. Yet the Canning opinion makes no mention of filibusters or the cloture rule.

Of course, once we come to see the filibuster as the root of the problem, it's hard not to shift the blame from the DC Circuit to the Senate itself, and in particular, to the Democratic leadership.  By coincidence, the Canning decision was handed down the same day that Harry Reid and Mitch McConnell cut a deal for "filibuster reform" that largely leaves the filibuster intact. It's possible to read this deal as typical Democratic Party spinelessness, but I also suspect that a fair number of Dems wanted to preserve the filibuster for some future time when they find themselves in the Senate minority. There's nothing in the deal that can or will prevent the future Republican majority from eliminating the filibuster when that day arrives, so if this was in fact the thinking of the Senate Dems, time will tell whether they misplaced their faith in the power of long-run reciprocity.

Even if reciprocity holds over the long run, however, ending the filibuster would have likely been a net benefit to Democrats. Let's say that the legislative filibuster is a wash: A Democratic blocking minority in the Senate would be roughly as likely to want to stop some legislation by a Republican president as a Republican blocking minority in the Senate would want to stop some legislation by a Democratic president.  Ditto for judicial appointments, where each side has as much to gain from blocking the others' appointments as it has to lose from having its own appointments blocked. Even so, the filibuster appears to be a net gain for the Republicans on executive appointments. Why? Because, other things being equal, Democratic administrations want federal agencies to do things whereas Republican administrations, being more hostile to regulation, are fairly content to have their agencies do nothing. So, if filibustering appointments is a means to block agencies from doing things, then it is a tool that on net benefits Republicans, not Democrats.

That calculus changes if one thinks that over the long run, Democrats are more likely to be in the minority in the Senate or that that Republicans are more likely to hold the presidency. Perhaps Sen. Reid fears the latter based on reports of Republican state-level efforts to gerrymander the allocation of electoral votes.  If so, I sure hope he has a plan for directly combating those efforts.


matt30 said...

The DC Circuit's decision just doesn't make any sense. The framers didn't want vacant seats filled by the president alone if the seat was left vacant 3 days before the intersession recess? And it could never be filled by a recess appointment forever more since it didn't happen during an intersession recess? I mean... what?! Are they crazy?

And it seems to me that whether or not the Congress is in recess is a political question. You can't parse out of the word "the" judicially manageable standards that remove all discretion from the Congress about when it is or isn't in recess. I mean, what is going on here? Am I the only one not understanding a darn thing the court said on this issue?

Anil Kalhan said...

Great post. Don't miss Garrett Epps's piece on this three-ring circus in the Atlantic as well.

Sam Rickless said...

I'm on p. 7 of Canning and I can already tell you that Judge Sentelle doesn't know how to spell "loath". If an originalist can't tell the difference between "loath" and "loathe", then, Houston, we have a problem.

Sam Rickless said...

On the merits, I find myself with Sentelle on how to read the recess clause, much as it irks me in this case. I could see arguing that the Senate was in recess by virtue of the fact that it was only in pro forma session at the time of the last NLRB vacancy. But the appointments were not made during the pro forma session (the Senate had reconvened at the time of the recess appointment of all three NLRB members), and the vacancies of the other two seats on the NLRB had "happened" in August 2011 and August 2010, when the Senate was still in session. So it does look like Obama didn't have power under the Constitution to make these three appointments to the NLRB.

Even if "the Recess" is vague (which is a stretch), "happen" in this context is not.

A Balkin or a Dworkin (or a Tribe?) might argue that we should interpret the recess clause by means of its underlying principle, which is that the business of government should not stop just because the Senate is not in session to confirm or not confirm the President's nominations. Maybe underlying principles are needed when there is ambiguity. But I can't see the argument for appeal to underlying principles when the text is not ambiguous. Otherwise we should be able to interpret the clause that says that the President must be 35 in light of the underlying principle that says that the President should be mature enough and have had sufficient experience to perform the duties of the office adequately. And nobody believes that this is how the clause should be read, and for good reason.

But there is also the Faithful Execution clause. And it looks like we are going to have a Constitutional crisis when the Senate refuses to exercise its advice and consent function (by not bringing nominees to the floor of the Senate for an up or down vote), thereby making it impossible for the President to appoint those people who are the only ones who can execute the laws. Canning doesn't discuss this problem, and just brushes it aside as a form of "administrative inconvenience" because Congress *could* find a way to enable a board like the NLRB to perform its functions with only two members. But that's just wrong, in my view. If the Senate is not doing its constitutional duty, then the President has no choice but to appoint, in order to make sure that the laws are executed.

It's true, as Sentelle says, that the Constitution is designed to prevent the President from going around the advice and consent of the Senate. But the Constitution presupposes that the Senate will actually say yea or nay to the President's nominees when it is in session. One of the NLRB seats had been vacant for 16 months when President Obama made his recess appointments in January 2012. That's a travesty. Checks and balances doesn't mean that the Senate should be able to prevent the President from faithfully executing the law.

One small note: I think there is enough evidence that pro forma sessions in between official Sessions should count as de facto recesses; and should a vacancy occur (i.e., happen) during a pro forma session, the President should be permitted to fill that vacancy during that pro forma session without Senate approval for one year. The Senate should not be permitted to define a real recess out of existence by the mere refusal to adjourn sine die. If the Senate wants to block the possibility of recess appointments, it needs to conduct real business, not sham business.

Sam Rickless said...

In his Atlantic piece, Epps points out that there are 3 vacancies on the D.C. circuit court, all of them unfilled because of Republican filibustering of Obama's judicial nominations to that very court. So here's a question for Sentelle. How many vacancies do there have to be on the D.C. court, and how long do these have to remain unfilled, for every decision rendered by a 3-judge panel of that court to be null and void?

matt30 said...

Sam, that's not a correct summary of the facts or interpretation of the argument.

The Senate was in pro forma session from December 20th, 2011 to January 23, 2012. The appointments were made 19 days before any real work was being done in the Congress.

The court didn't even touch the pro forma issue. And to suggest the word "the" prior to "recess" means only the recesses that occur between sessions (and not other "recesses" or long adjournments the Congress may take), and to imply that word removes all ambiguity, is just patently absurd.

I'm not even gonna start on the interpretation of word "happen." That augment was so terrible it didn't even make sense in the historical context the court put it in and asserted it was for.

Sam Rickless said...

Matt30, thanks for correcting me on the facts. Assuming you're right, that only brings out the fact that Obama made all the appointments during a pro forma session. So, if pro forma sessions are de facto recesses, then he made all the appointments during a de facto recess. But if that recess is not *the* recess, then the factual correction doesn't matter. Moreover it doesn't affect the fact (unless I'm wrong about this too) that two of the vacancies (the ones from August 2010 and August 2011) didn't happen (i.e., occur) during any recess of the Senate, and certainly not the same recess.

The problem here is that propositions the truth of which the Framers presupposed when they inserted the Recess Clause into the Constitution are no longer true. The Framers presupposed that intersession recesses would be long, and that some way of making it possible for executive power to be exercised in the event of vacancies during such long recesses was needed. Nowadays intersession recesses are relatively short, and vacancies rarely happen during such recesses. What to do? In practice, as long as a vacancy does not happen during an intersession recess, it should be possible for the Senate to do its duty and either approve or disapprove of the President's nominee in a timely manner.

But I *am* worried that we are looking at a situation in which the widespread use of the filibuster has resulted in the kind of Senate paralysis on Presidential nominations that constitutes a Constitutional crisis. Under these circumstances, broader considerations concerning checks and balances favor the constitutionality of Presidential appointments when the Senate refuses to do its job in a timely manner. Consider Richard Cordray, who had nomination hearings in September 2011. A filibustering minority of Senators refused to allow a vote on Cordray's nomination unless changes were made to existing law (Dodd-Frank). That's not what "advice and consent" is about. A minority of the Senate should not be permitted to hold the filling of executive positions hostage. When Senators get together and do this, they are violating their oath to uphold the Constitution, because they are trying to prevent the President from taking care that the laws be faithfully executed.

matt30 said...
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matt30 said...
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matt30 said...

Sam, I agree that what you have said above is correct - including the potential consequences if this decision is upheld. I just don't think this decision makes any sense.

If the court is going to go down this road and stick with such a strict interpretation of "the" and "happen," they also have to look at the word “session.” While annual sessions of Congress have been the norm for some time, the first Congress had three sessions in one year. The framers thought that a session of Congress was strictly the time when members of Congress were available (wherever they happen to be legislating) to form a quorum to get the business of the day done. When the members returned to their districts, the session was over. If the Congress of the United States is not able to determine when they hold "the recess," why are they able to determine when they are in session?

If we go by historical standards, as soon as Congress leaves for summer break the session is over. When Congress leaves and has one member gavel in pro forma proceedings, while the rest enjoy the holidays at home, that is the end of the session.

The court has packed these words with so much meaning that I don't think it is a trend that can continue to go on. What am I to make of the fact that in Section 1, Article 1 the word 'a' proceeds the word 'Senate' rather than 'the'? What do I do with phrase 'House of Representatives' that isn't proceeded by any article? Should I take that to mean we could have more than just one senate (e.g. "the Senate") so long as we have at least one? The decision is just pure crazy talk, IMHO.

Joe said...

Blame can be shared. More to (currently) to the Republicans than a few Democrat aiders and abetters so Democratic leadership is not who "bears the blame," stop, for me.

The myopic reading of the judges here, particularly two of them, is not a particularly sane way to interpret the Constitution.

The document, especially in this context, plays out in the real world, not just in the heads of judges who play word games about how all clear it is how we define words that split people for around 200 years.

meads said...

I believe the real issue is the Senate rules regarding the filibuster and pro forma sessions and how they they are being misapplied. The original purpose of the Constitution in creating the Federal Government and Congress was to create a working , efficient Government to solve the real issues of the day; interstate commerce, defense, transportation, communication, while protecting individual liberty.Like all Constitutional provisions, the Senate rules should be interpreted in this light and should be treated as Constitutional only to the extent they further these goals.While the filibuster in the sense of fostering debate has its purpose, it can not be used in a manner to prevent the majority from addressing the Nation's real issues of today. Such use is not sanctioned by the Constitution and is therefore unconstitutional. The failure of the Senate to eliminate the filibuster leaves the task to the Supreme Court. With respect to Obama's recess appointments , I believe that historic precedent should take precedence over a literal reading. As Marshall said, " it's a Constitution we are interpreting " and as such we should view President's Obama's action as totally consistent with the accepted bounds of the recess appointment power. furthermore, the Senate's failure to perform its Constitutional obligation to Advise and Consent, is grounds for giving the President the broader interpretation of this power

Paley Rene said...

In pro forma session at the time of the last NLRB vacancy. But the appointments were not made during the pro forma session (the Senate had reconvened at the time of the recess appointment of all three NLRB members), and the vacancies of the other two seats on the NLRB had "happened" in August 2011 and August 2010, when the Senate was still in session. WOW Gold

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Cicy said...

One small note: I think there is enough evidence that pro forma sessions in between official Sessions should count as de facto recesses; and should a vacancy occur (i.e., happen) during a pro forma session, the President should be permitted to fill that vacancy during that pro forma session without Senate approval for one year. The Senate should not be permitted to define a real recess out of existence by the mere refusal to adjourn sine die. If the Senate wants to block the possibility of recess appointments, it needs to conduct real business, not sham business.

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