Analysis 17-01-2014

Obama, the Senate, and Recess Appointments

A Supreme Court case took place on Monday, which on the surface seems trivial, but may have a major impact on the power of the American President.  Should the Supreme Court rule against Obama, the presidency will lose a power it has had for over 200 years.  If the court rules for Obama, the balance of power carefully constructed in the US Constitution, will swing towards the President.  The ruling could also have a major impact on the flow of power from the Congress to the President since the beginning of the republic.

The issue is recess appointments and four specific appointments.  On January 4, 2012, Obama made four recess appointments while the Senate was conducting pro forma sessions. A federal appellate court invalidated these appointments on the principal ground that they were made during a Senate session rather than “the Recess” within the meaning of the Constitution. The U.S. Supreme Court has never before considered the meaning or application of the Recess Appointments Clause, but it has agreed to review President Obama’s recess appointments this term.

In an attempt to balance the powers of the legislative and executive branches of the US government, the writers of the constitution gave the president the power to appoint key government officials like judges, ambassadors, military officers, and cabinet secretaries.  However, the Constitution made it clear that these appointments must receive the “advice and consent” of the US Senate.

Since the Constitution was written in the 1780s, when travel was by foot or horse, the Constitution made an arrangement to make recess appointments when the Senate was not in session and it might take weeks to gather the Senate for a vote.  Article II, section 2, clause 3 of the Constitution provides that “[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.”

Alexander Hamilton, one of the framers of the Constitution, described the recess appointment power as “nothing more than a supplement” or an “auxiliary method of appointment,” to operate “in cases to which the general method [of appointing officers] was inadequate.” He explained further:  The ordinary power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers, and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay.

However, the recess appointment became a powerful tool for presidents who were trying to make a controversial appointment or faced a Senate controlled by a different party than the president’s.

It didn’t take long before the president tried to push the meaning of the constitution.  In 1823, President James Monroe’s Attorney General William Wirt issued an opinion expanding its use. Wirt addressed the question of filling a vacancy created as the result of the statutory expiration of the commission of the navy agent in New York. Although the vacancy arose while the Senate was in session, Wirt concluded that the President could fill the vacancy once the Senate was in recess because the president was unable to act.  That has been the position of presidents for the last 190 years.

The Senate reacted in 1863 by refusing to pay recess appointments until they were actually confirmed by the Senate.  However, they rescinded it partially in 1940 by agreeing to the Wirth definition of a recess appointment.

Needless to say, presidents have used the recess appointment whenever they wanted, with few objections.  Theodore Roosevelt used it frequently and President Bush used in 20 time in just the first two years of his presidency.  Obama used it in his first two years in the White House even though the Democrats had an overwhelming majority in the Senate.

Of course, the Senate had several options to stop recess appointments too.  The most common was to not recess – something Democratic Senate Majority leader Harry Reid did during the final years of the Bush presidency.  He would hold pro-forma Senate sessions every three days even though most members were back home so Bush could not make appointments.

Although the Democrats still control the Senate, the Republican House had another way to stop recess appointments.  Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of 2012, and so the Senate, consistent with the requirements of the Constitution, had some sort of session every few days.

Obama problem was that he wanted to make several controversial appointments that wouldn’t have made it through a traditional Senate confirmation.  Therefore, he pushed the definition of the recess appointment and attempted to unilaterally appoint three people to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau (after the Senate blocked action on his nomination), even though the Senate was holding pro forma sessions every three days in accordance with the Constitution.  Obama justified this by noting grounds that the Senate’s pro forma sessions could be disregarded because the Senate, by its own declaration, was not intending to conduct business during these pro forma sessions. While acknowledging that “[t]he question is a novel one” with “substantial arguments on each side,” the Office of Legal Counsel concluded that “while Congress can prevent the President from making any recess appointments by remaining continuously in session and available to act on nominations, it cannot do so by conducting pro forma sessions during a recess.”

This didn’t go over well with Senate Democrats who are jealous of their prerogatives’.  Democratic Senator Baucus blasted the White House for making the recess appointment without congressional approval.  “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee—and answered,” Baucus said.

The courts, who are the arbiter in this, haven’t’ agreed with Obama either.  The U.S. Court of Appeals for the D.C. Circuit invalidated these recess appointments on two grounds not directly related to the use of pro forma sessions. First, the court held that the adjournment in question took place within a formal enumerated Senate session and therefore did not constitute “the Recess” of the Senate within the meaning of the Recess Appointments Clause. Second, a majority of the panel held that the vacancies in question did not “happen” during the recess and therefore could not be filled under the Clause at all.

Although the US Supreme court hasn‘t ruled yet, it sounds like they are unlikely to support Obama’s legal stance.  Even Obama appointee Justice Elena Kagan, said at least twice that “it was the Senate’s job to decide” when it goes out on recess, thus giving it the ability to control when, or if, the president may make such appointments.

Conservative Justice Antonin Scalia, argued that the president’s use of the recess appointments to fill empty slots on the National Labor Relations Board “flatly contradicts the clear text of the Constitution.” When U.S. Solicitor General Donald Verrilli defended the decision by saying the Constitution is ambiguous on that question, Scalia retorted, “It’s been assumed to be ambiguous by self-interested presidents,” to gasps and laughs in the chamber.

The Future of the American Presidency

Although this issue may seem to be a bit of arcane constitutional law, it has a major impact on the powers of the American president.  For the last 200 years, the American president has gained in power compared to the other branches of government, the judiciary and Congress.  When presidents have overstepped their bounds, it has usually been on the ground of national security – something that is rarely challenged by Congress, and, if it makes it to court, is frequently upheld.

By making these controversial appointments to the NLRB, he has weakened his and future president’s powers.  And, it is quite probable that future presidents will have even less latitude in recess appointments than they have in the past.  This is a severe reduction in the power of the president.

This may be only the beginning.  Every decision made by those appointees will be struck down as unconstitutional.  This will lead to a raft of other court cases.  And, depending on the ruling, there may be other court cases challenging the power of the president’s power.  Ironically, in an attempt to increase the power of the presidency, he may have severely restricted it.

There may be other impact.  Over the years, presidents have frequently used executive orders rather than go through the legislative process.  Obama has gone further and has also changed legislation by deciding what should be enforced.  If the Supreme Court signals in this case that the presidency has exceeded its constitutional authority, other cases may be headed to the Supreme Court that will further trim the power of the presidency.

And, there is evidence that this already is beginning.  On Tuesday, the DC Court of Appeals clipped the power of the presidency a bit more.  In a unanimous decision (with some dissent on the justification), the court invalidated the Net Neutrality rules imposed by the FCC because Congress refused to approve them.  This is a blow to Obama who made Net Neutrality an issue in his 2008 campaign.

If the recess appointment decision goes against Obama, it won’t have much impact now that Reid has eliminated the filibuster for presidential appointees.   But it may be critical next year if the GOP holds the majority in a narrowly divided Senate. In the case of a controversial appointment by Obama, a Senate leader, who is a Republican could refuse to bring the nomination to the floor, leaving Obama unable to make recess appointments. If the Court rules against Obama and the GOP’s odds of winning big in November start to climb this year, expect Obama to nudge anyone in a Senate-confirmable federal position to quit this year so he can fill their vacancy on favorable terms.



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