The 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.There's a lot to unpack in a constitutional clause like that: does "that may happen" mean only vacancies which open up during the recess can be filled, or that any vacancies which may have been created at any point may be filled during the recess? Any what's a "recess," anyway, and who gets to decide?
U.S. Const'n, Art. II, sec 2, cl. 3
The Supreme Court of the United States heard oral arguments this morning on these questions, in review of a 2013 D.C. Circuit opinion which had held that "the recess" meant "only when Congress says it's in recess" and that the power only covered those vacancies which were created during the recess period itself. And it doesn't sound good for the presidency.
See, in early 2012, President Obama was frustrated by Republican efforts which stymied his ability to fill vacancies on the National Labor Relations Board (NLRB), a five-member board which needs three to have a quorum. With the Board down to two members, the president made recess appointments of three new members on January 4, 2012, during a period when the Senate was mostly away, just holding pro forma sessions to keep the constitutional lights on (much as Dem Senators had done to President George W. Bush to frustrate his recess appointment powers). The Noel Canning company, subject to one of the new NLRB's first enforcement actions, sued to block its effect citing what they perceived as the illegitimacy of the NLRB's new appointees, and the D.C. Circuit agreed.
Please read below the fold for more on recess appointment power.
The argument in many ways is an argument over what modes of constitutional interpretation matter most, and how you view them may depend on whether you see this as Obama v. Senate GOP or Any President v. Any Senate. Do we strictly rely upon the constitutional text and the actions of the early presidents in behaving under such a clause, reading it as only having meaningful power for an era in which the Senate couldn't be haled back for months at a time when away on recess—as Justice Ginsburg asked, "If we look back historically, Congress met and they met continuously. And then they went on horseback back home and they were away for 6 months, even 9 months. Today, there's nothing like that. The inter-session recess could be an hour. So what do we do with that?"
Or as Justice Kagan asked:
General, would you agree that this clause now is not mostly used to deal with emergencies arising from congressional absence? That most modern Presidents -- and I say this sort of going -- going back to President Reagan, Presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved?Or, as Justice Breyer asked ...
You know, absence in this day and age - this is not the horse and buggy era anymore. There's no real -- there's no such thing truly as congressional absence anymore. And that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.
JUSTICE BREYER: The most surprising thing to me that you have said, and it's important, is not just the view of language at the time of the framing, but what the purpose of this clause was. I mean, this is a very well-briefed case, and I have looked at them.How much do we defer to the more prolonged history of practice by presidents of both parties under the Clause under which it was clearly understood that any vacancies, regardless of when they occurred, could be filled via recess appointment given the Senate's inability to advise-and-consent? (See, e.g., the briefs filed by the Solicitor General and amicus Constitutional Accountability Center, or historical documents going at least as far back as a July 7, 1792 opinion by Attorney General Edmund Randolph that this was a power for "a case of necessity only; as where the Officer has died, or resigned during the recess, or a person appointed during the Session shall not notify his refusal to accept, until the recess.")
I have read them, actually.
... I cannot find anything, so far, and I may have missed it -- I'm asking -- I can't find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the President. To the contrary, Hamilton says that the way we're going to appoint people in this country is Congress and the President have to agree.
Now, that's a political problem, not a constitutional problem, that agreement. And it was just as much true of President George Bush, who made six appointments that happened previously, as it is with President Obama, who's made four. All right? So -- so where -- and he says this clause is a supplement, a supplement, to the basic clause to take care of the timing problem. So, what have I missed? Where is it in the history of this clause, in its origination, that it has as a purpose to allow the President to try to overcome political disagreement?
The Court has three options, basically: (1) the Clause is only valid for vacancies which arise during a recess; (2) the Clause is only valid during recesses which the Senate agrees are recesses; or (3) pro forma sessions do not disrupt the recess, and these appointments were valid. As to why I think it's Door #2, let's focus on a few telling excepts from today's argument. You may find other passages persuasive. Solicitor General Don Verrilli, defending the Administration, faced blunt questions from Justice Kagan, who herself served as SG and in the White House:
GENERAL VERRILLI: ... A stable equilibrium  has emerged over the course of this country's history between the two branches. After all, what we are advocating for here is the status quo. It is the equilibrium that has emerged since Congress -- since the Senate started taking lengthy intra-session recesses, Presidents started making recess appointments during those recesses.Justice Kennedy and others are seized on the question of whether the president could declare pro forma sessions to be recessional in nature:
That began in the Civil War days. It's continued to the present. The President -
JUSTICE KAGAN: General, I think that's a really strong argument, but I have to say I'm not sure it applies consistently throughout each of the three claims that you make. Because if you are going to rely on history and on the development of an equilibrium with respect to what "happens" means, and if you are going to do that again with respect to whether intra-session recesses are included, then it seems to me you also have to look to history and the development of an equilibrium with respect to Congress's definition of its own power to determine whether they are in recess or not.
In other words, your third argument about pro forma sessions, the history is entirely on the Senate's side, not on your side. And if we're going to take a kind of continuing practice and the development of equilibrium seriously, you might win on questions 1 and 2 and then lose on question 3.
JUSTICE KENNEDY: Your argument is, it seems to me, in search of a limiting principle. A lunch break, a one-day break -- you've -- you've thought about this -- a 3-day break, a 1-week break, a 1-month break; how do you resolve that problem for us?As for Noel Francisco, who represents Noel Canning, the interruptions were fewer, the soliloquies longer on how a ruling in his client's favor isn't a big deal:
GENERAL VERRILLI: I think the -- the way we resolve that problem is by looking to the Adjournment Clause. We think if it's a break that is sufficiently short, that it wouldn't require the -- wouldn't require the one House to get the consent of the other, but that's a de minimis recess and that's not a recess in which the President would have authority -
JUSTICE SOTOMAYOR: Is that 3 days?
JUSTICE KENNEDY: And what about the pro forma sessions, then? They don't -- or correct me if I'm wrong. They don't require the consent of the other house.
GENERAL VERRILLI: Well, but the problem with the pro forma sessions, I think, Justice Kennedy, is in thinking about the length of recess, we would submit, and this is based on the formal dictionary definition of "recess" at the time of the founding and now, which is "a suspension of business," the recess was from January 3 when the session started until January 23. And the reason I think that --
JUSTICE KENNEDY: So -- so you think there's no recess during pro forma sessions?
GENERAL VERRILLI: There is a recess. And the reason is because the Senate has issued a formal order that no business shall be conducted and that's a formal -
CHIEF JUSTICE ROBERTS: Well, let's just talk -- let's focus on that. What if, instead of saying "No business shall be conducted," the order said, "It is not anticipated that any business will be conducted." Does that suffice to eliminate that period as a recess?
GENERAL VERRILLI: I think that it's a - that's a different case and I think, concededly, a significantly harder case for the Executive because here -
CHIEF JUSTICE ROBERTS: Yeah. Well, it's difficult and harder, but it also suggests that you're just talking about a couple of magic words that the Senate can just change at the drop of a hat. So maybe the point is not that significant.
I would, though, like to address the practicality issue. I talked about how there have only been four recess appointments to the Article III that are potentially invalid since 1960. I likewise don't think, if you were to rule in our favor on the first two questions, that it would be particularly disruptive to the Executive Branch either.Similarly, Miguel Estrada, for Senate Republicans:
If you look at the government's appendix, I would hazard to say that most of those officials probably don't exercise much, if any, agency rule-making or adjudicatory power at all. But as to those who do, going forward the government can solve the problem through agency ratification of past decisions. Going backward, there are a variety of doctrines that would limit anybody's ability to actually challenge those past actions, including, for example, the APA's 6-year statute of limitations on challenging final agency action, various finality rules that would prohibit a party from raising an issue that they could have but failed to raise in an earlier proceeding, and various justiciability doctrines, like mootness, standing, and, Your Honor, the de facto officer doctrine, at least outside of the context of direct appeal.
I think this constellation of issues probably explains why this is the first time this issue has reached this Court in 225 years. This is not to say that a ruling in our favor on the first two questions wouldn't have any past impact. It would undoubtedly have some. But as this Court's decisions in cases like Chadha and Booker and Blakeley make clear, this Court has never shied away from enforcing the strictures of the Constitution simply because it could have some impact on prior cases.
For the reason that I started out by outlouding -- by outlining -- excuse me -- the Senate's official records do show that the Senate was in session on each date, and therefore, the Senate does have an official view.I do think that Noel Canning wins this one, given that the Senate was technically convening pro forma sessions during this period, but that the Court's not going to go the further step of saying that vacancies must be created during a recess for the recess appointment power to be allowed. They don't have to go that far for this case, and the Chief Justice might even get unanimous opinion that whatever the recess power contemplates, as long as someone shows up in the Senate that day it's not really in recess. Your constitutional mileage may vary.
But from the practical point of view, we do know that the Senate has a view on these things. And how do we know? The president's party controls the Senate. If the Senate wanted to recess, Rule 22nd of the Senate says that's not a debatable proposition.
If a majority of the Senate wants to recess, even before the evolution of the filibuster, non-debatable proposition. So the Senate says, which is controlled by the president's party, says, we want to recess, we want to go away, we don't care if the president has this power. They vote for that. House says no. What happens then?
Article II, Section 3 of the Constitution, the fight goes to the president, and it is in that event that the president gets to adjourn them until such date as he shall see proper.
So if the Senate had any view that it wanted to recess, they could have had a vote, and the issue would have ended up in the White House, in the lap of the president. He had plenary constitutional power to give himself an inter-session recess by terminating the session and have a real recess appointment power if he could find somebody whose vacancy had actually arisen at the time.
But this is the cockeyed way of going about the instruments of the Constitution. There is no power in the Constitution to use the Recess Appointments Clause to overcome the opposition of the Senate to the president's nominees. And for all that we hear about today, which has to do with how the heaven will fall, and the parade of horribles, there is no parade, and there is no horrible. The only thing that will happen is that the president, heaven help us, will be forced to comply with the advice and consent that the appointments power -- excuse me -- the Appointments Clause actually calls for. That was not viewed as an evil by the Framers. That was what the Framers unanimously agreed was going to be the principal means for appointments for the principal officers of the union.