Calling A Time Out On Recess Appointments

Yesterday, SCOTUS heard oral arguments for National Labor Relations Board v. Noel Canning, the case challenging Obama’s controversial recess appointments made during an intrasession Congressional break. Lyle Denniston observes that “some of the Justices whose votes the government almost certainly needs to salvage an important presidential power were more than skeptical”:

Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem, not a constitutional problem.  Senators of both parties have used the Constitution’s recess appointment provisions to their own advantage in their “political fights,” Breyer said, but noted that he could not find anything in the history of the clause that would “allow the president to overcome Senate resistance” to nominees.

Serwer analyzes the case:

The question is how big of a headache the high court wants to give the Obama administration and future presidents–from either party.

Siding with the D.C. Circuit ruling entirely would make it much harder for the government to function, especially if the opposing party controls the Senate. With the filibuster nuked for presidential appointments, the stakes are lower because nominees can be confirmed by a majority vote. But the high court could rule that the Senate gets to decide when it’s in recess, ruling that only Obama’s recess appointments, made in defiance of unprecedented Republican obstruction, are invalid.

“If the Court does not allow the traditional recess appointments, you’ll have a federal bureau created by Congress but one that Congress won’t allow the president to staff,” said Adam Winkler, a law professor at the UCLA School of Law. It would also mean the recess appointment power would be all but useless to future presidents if the opposite party controls the Senate, because they could just keep it in session virtually all the time. That could be Obama’s fate if Republicans take back the Senate in 2014.

Ilya Sharpiro weighs in:

Justice Kennedy said that he was “in search of a limiting principle” to the government’s position—so as not to simply give the president sole discretion to determine when the Senate is or isn’t in recess. Justice Kagan was left asking both sides how the Court should rule given that the presidential practice—whose history prior to the Truman administration the parties dispute—seemed to so clearly contradict the constitutional text and structure.

And indeed that is the question: If it’s true, as an overwhelming majority of the justices seemed to think, that the president was only supposed to have the power to make recess appointments during intersession recesses, and only for vacancies that arose during such recesses, what does it mean that this correct interpretation has never been followed?

Last week, Eric Posner urged the Supreme Court not to rely on originalism when deciding the case:

[C]onsider what the originalist must ignore: the huge growth of the country, and the vastly expanded federal bureaucracy that allows the national government to be much more involved in the regulation of everyday life. In 1789, the president made do with a single part-time attorney general. Today, the Justice Department employs more than 100,000 people. The founders did not anticipate the party system, and could not foresee that opportunities for conflict between the president and Senate would multiply infinitely. They surely did not foresee all the opportunities for obstruction afforded to a Senate with 100 members (compared with 26 at the founding) that often operates by consensus, or supermajority rule.’

Andrew Rudalevige thinks Obama is in the wrong:

The basic issue facing the court is what counts as a “recess” — and, along the way, whether the Senate, or the president, gets to decide whether the Senate is sitting. Here I tend to agree that the Obama administration overstepped. In its memo in January 2012, the DOJ’s Office of Legal Counsel concluded that “the President… has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.” But as the D.C. Circuit responded, “Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.”  The president was acting rationally in the face of opposition obstructionism, seeking to activate the CFPB and rescue the NLRB from quorum-less impotence. But that doesn’t mean his actions were legal.

Bernstein approves of Rudalevige’s solution:

Presidency scholar Andrew Rudalevige runs though the issues involved, and suggests the Supreme Court should opt for a middle ground: Retain the president’s traditional recess appointment power, but allow senators to prevent recess appointments by remaining in session — even if “in session” means only holding pro forma meetings. That’s not a bad outcome. The Senate should have the ability to block presidential appointments; if a Senate under divided government really wants to refuse to staff the government, that desire is probably constitutionally protected, for better or worse. Those senators who refuse the president’s requests would risk the possibility of a backlash.

Earlier this month, Victor Williams hoped that the Court will decline to rule on the issue at all:

As I argued in amicus briefs to the DC Circuit and the Supreme Court [PDF], this case presents a non-reviewable political question. Throughout our Republic’s history, the court has recognized that some questions are committed by the Constitution’s text to the exclusive discretion of the elected political branches.

Allahpundit dismisses this argument:

Per Gabe Malor, there’s a chance that the Court could decline to rule at all on grounds that this is a political question, i.e. a dispute over powers between the executive and legislature on which the Constitution provides no meaningful guidance. Let the political process sort that out, not the courts. Two problems with that in this case, though. One: The plaintiff challenging O’s recess appointments in the NLRB case isn’t the Senate, it’s a corporation. Technically, this is a case about the executive’s power to regulate private entities by making appointments to regulatory bodies through dubious procedures.

Lastly, Harsanyi argues that, contra Andrew Rosenthal, that the extremism of the GOP is no excuse for abusing executive power:

“In this particular case” is the favored argument for ignoring tradition and the law. Neither party is innocent. I noticed John Yoo making a similar rationalization in a NRO piece criticizing Obama for executive overreach (snicker if you must) on NLRB appointments: “Presidents, I think, should make broader claims of presidential power when the stakes for the nation and the office are higher than whether Boeing should be allowed to open a plant in South Carolina,” he wrote.

If only Obama had a better imagination and loftier goals! Then, misusing executive power might be worth arguing for. For Yoo, The War on Terror trumps any concern about abuse. For Rosenthal, and many liberals, it’s Republican obstinacy to Obama’s agenda that is an unprecedented roadblock that excuses overreach.