Noel Canning v. NLRB

[Grizzly Adams]

As may have been discussed previously, President Obama decided in 2012 to appoint several people to positions in the National Labor Relations Board using his recess appointment power. He did this despite the fact the Senate was still technically in session, holding pro forma sessions every three days.

The NLRB, with the recess-appointed members, proceeded to make rulings on questions before them. One such ruling adversely affected Noel Canning, a contract bottling and canning company, which subsequently filed suit in federal court, alleging the unfavorable ruling was illegitimately issued because the board lacked a quorum because the recess appointments were unconstitutional. The case has made its way to the US Supreme Court (more information here).

The lower court decided in favor of Noel Canning (and not even just because the Senate was holding its pro forma sessions), ruling that where the recess appointment clause refers to "the recess of the Senate" it means only that recess which occurs between the first and second sessions of a Congress. It went even further and also ruled the vacancy being filled must have been created during that same recess. Oral arguments for the case took place at the Supreme Court on 13 January.

Probably not surprising to most here, I am solidly rooting for the court to rule in favor of Noel Canning. My reasoning will come out in later posts. What are your thoughts?

 

[Cool Hand Luke]

President Obama claimed the power in 2012 to appoint several people to positions in the National Labor Relations Board using his recess appointment power.

.
Well if you're interested in a reasoned, scholarly debate about it (and it's a very good subject to debate) then we need to start out by debunking the above quoted piece of ridiculous rhetoric so we can get down to the truly important stuff.

President Obama did not "claim the power" to make these kinds of appointments. It has, in fact, been the official position of the Justice Department since 1921 that the definition of a Senate recess for the purposes of the Appointments Clause was anytime that the Senate was unable "to receive communications from the President or participate as a body in making appointments". This language is actually embodied in a formal US Attorney General opinion from that same year.

The Justice Department later extended that AG Opinion to the pro forma sessions started in the Senate to block recess appointments. This was done under George W. Bush's presidency in 2004, not Obama's. In fact, the opinion was authored by Jack Goldman as Assistant Attorney General and approved by Alberto Gonzales as Counsel to the President - both of whom carry legal superstar status in eyes the Republican Party.

The only thing Obama did was to actually rely on what had been the law since 1921 and what had been official policy of a Republican administration since 2004. If anybody "claimed the power" to make appointments during pro forma sessions it was Bush. Obama was just the first President to act on Bush's claim. In the end, though, it was the Bush administration that formalized the claim to presidential appointment power during pro forma sessions and made it the official policy of the Executive Branch.

So while it's obvious you've got an ideological leaning on this one, you need to ditch this concept of Obama as the big, bad boogeyman on recess appointments. What he did has been the law since Warren Harding was in office and was fully endorsed by the Republican Party until Obama started using their own legal opinions against them. Trying to twist this into some kind of power grab by Obama is nonsense. It's just another political lie put out by his detractors to try and shame the man.

And with that issue safely put to rest, this is actually an extraordinary fascinating case that I would love to discuss if people can just leave their political attacks out of it. I'm actually on the fence about it. There are great arguments on either side.

My current thinking is that the Court may just chuck the whole thing out as a nonjusticiable political question and let the other two branches duke it out. That would be the least troublesome course for all parties involved in the current case but could risk gross expansion of presidential power down the road. It's a real tough one and a great case for those of us who thrive on this kind of stuff. There's really no telling where The Nine will end up with it.

 

[Grizzly Adams]

.
Well if you're interested in a reasoned, scholarly debate about it (and it's a very good subject to debate) then we need to start out by debunking the above quoted piece of ridiculous rhetoric so we can get down to the truly important stuff.

You are unequivocally, absolutely, 100% correct on this point. I began drafting the sentence, tweaked it a lot, but then left the first part unmodified by accident. I have altered the wording.

The only thing Obama did was to actually rely on what had been the law since 1921 and what had been official policy of a Republican administration since 2004. If anybody "claimed the power" to make appointments during pro forma sessions it was Bush. Obama was just the first President to act on Bush's claim. In the end, though, it was the Bush administration that formalized the claim to presidential appointment power during pro forma sessions and made it the official policy of the Executive Branch.

I would take issue with the assertion that someone in Bush's Cabinet drafted a memo saying Bush could do something means that it was Bush's claim, but it's really quite irrelevant. Bush didn't do it; Obama did. And here we are.

So while it's obvious you've got an ideological leaning on this one, you need to ditch this concept of Obama as the big, bad boogeyman on recess appointments. What he did has been the law since Warren Harding was in office and was fully endorsed by the Republican Party until Obama started using their own legal opinions against them. Trying to twist this into some kind of power grab by Obama is nonsense. It's just another political lie put out by his detractors to try and shame the man.

And with that issue safely put to rest, this is actually an extraordinary fascinating case that I would love to discuss if people can just leave their political attacks out of it. I'm actually on the fence about it. There are great arguments on either side.

I would say it IS a power grab because he actually did it. Regardless, I would like to believe I'd be on the same side of the debate if it were my guy in the Oval, but I couldn't promise it 100%.

My current thinking is that the Court may just chuck the whole thing out as a nonjusticiable political question and let the other two branches duke it out. That would be the least troublesome course for all parties involved in the current case but could risk gross expansion of presidential power down the road. It's a real tough one and a great case for those of us who thrive on this kind of stuff. There's really no telling where The Nine will end up with it.

I can't see a responsible Court declaring this a non-justiciable political question. There is a process for recess appointments, and it must be followed. It's clearly a constitutional issue.

 

[casebro]

To me the big point is that neither the 1921 nor 2004 memos from the AG office have ever been adjudicated.

 

[Spindrift]

To me the big point is that neither the 1921 nor 2004 memos from the AG office have ever been adjudicated.

How often are those AG memos adjudicated?

 

[Cool Hand Luke]

I can't see a responsible Court declaring this a non-justiciable political question. There is a process for recess appointments, and it must be followed. It's clearly a constitutional issue.

.
But what they're fighting over is the definition of "recess of the Senate" which isn't in the Constitution. The Constitution is completely silent over what a "recess" is. That leaves the window open for political question doctrine.

On top of that, it has always been understood that it's the Senate which decides for itself when to go on recess. That further encourages political question doctrine since the timing of the recess is completely under the control of a political branch.

Now, whether they SHOULD call it a political question is another matter. That approach is as fraught with danger as coming out with a strong ruling.

Roberts has traditionally shied away from big-ended rulings with sweeping repercussions. He likes to keep the court out of things. In this one he either has to side with the Senate, side with the President, or punt. Under those circumstances I think punting is definitely in his playbook.

Kagan might well be leaning toward political question doctrine too. During the oral argument she called the clause "a historical relic" and flat out said that it's "really the Senate’s job to determine" what a recess is. I don't know how you can believe in that statement and not call it a political question.

On the other hand, it was clear from the argument that most justices think there needs to be some limit on Presidential authority in this area. Invoking political question doctrine would, in the end, hand the whole apple to the White House so they may be reluctant to do it even if the case clearly calls for it. Ginsburg, Kennedy, and Alito clearly seemed uncomfortable with giving either the President or the Senate a full pass.

So who knows how it will play out. I personally think political question doctrine is appropriate here - and some of the amicus briefs filed in the case support that as well. It's clearly an option on the table if The Nine can't figure out a better way to deal with it.

One thing that's certain is the opinion from the DC Circuit can't be allowed to stand. Somebody must have slipped some goofballs into the judge's coffee on the morning they came up with that stinker of an opinion. I can't possibly imagine that we'll walk away from this with the lower court ruling intact.

 

[Grizzly Adams]

As I stated in the OP, I believe Noel Canning has the argument in this case, and the lower court got it right. Here's why:

The recess appointment clause states:

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.

First, the times during which the clause states it can be exercised is during "the" recess of the Senate. The reference to a singular recess is most reasonably read to mean the intersession recess (breaks during the summer lasting a month or two) and not any old recess such as winter holiday breaks, weekends, or lunch.

Second, the clause applies only to vacancies that "happen during" the recess. A study of the dictionary reveals the definition of the word "happen" and its synonyms would not refer to any vacancies that didn't arise during the recess.

 

[Grizzly Adams]

Oh, also, during that particular recess where Obama made those recess appointments the Senate passed, and the president signed, legislation. So there's that...

 

[Grizzly Adams]

.
But what they're fighting over is the definition of "recess of the Senate" which isn't in the Constitution. The Constitution is completely silent over what a "recess" is. That leaves the window open for political question doctrine.

On top of that, it has always been understood that it's the Senate which decides for itself when to go on recess. That further encourages political question doctrine since the timing of the recess is completely under the control of a political branch.

Now, whether they SHOULD call it a political question is another matter. That approach is as fraught with danger as coming out with a strong ruling.

They absolutely should NOT call it a political question. You've made a great case in this post as to why. Yes, the Constitution is silent on what a recess is. However, the recess appointment clause is not quite so silent on when the power maybe used, as I described above.

And it's precisely because the Senate which decides when it is in recess that this is a problem. The Senate decided it was in session, and really could not legally be out of session because the House wouldn't agree to adjourn. The Senate was in session but the president decided it wasn't (although only for confirmation votes, but not for votes passing legislation) and appointed people to positions for which the Senate must confirm them. If the court cannot decide if someone was improperly appointed, who does?

Kagan might well be leaning toward political question doctrine too. During the oral argument she called the clause "a historical relic" and flat out said that it's "really the Senate’s job to determine" what a recess is. I don't know how you can believe in that statement and not call it a political question.

It's easy. You call it a separation of powers question, because that's precisely what it is.

 

[Cool Hand Luke]

As I stated in the OP, I believe Noel Canning has the argument in this case, and the lower court got it right. Here's why:

The recess appointment clause states:

First, the times during which the clause states it can be exercised is during "the" recess of the Senate. The reference to a singular recess is most reasonably read to mean the intersession recess (breaks during the summer lasting a month or two) and not any old recess such as winter holiday breaks, weekends, or lunch.

Second, the clause applies only to vacancies that "happen during" the recess. A study of the dictionary reveals the definition of the word "happen" and its synonyms would not refer to any vacancies that didn't arise during the recess.

.
Yes, this will almost certainly be in Scalia's concurrence or dissent. I'm not sure the rest of the Court is buying it though - and not too many other people are either.

If you listen to or read the transcript of the oral argument several of the justices expressed skepticism about this approach. The meaning of the word "happen" was singled out with the strong suggestion that its meaning has changed significantly from the days of the Founders. I think the extraordinarily limited reading of the word "the" is an even bigger stretch.

More importantly, I think, is the fact that everybody has been interpreting those same words in a different way for the last 200+ years.

The question over the meaning of "the" and "happens" actually came up for the first time way back in 1792. The issue was whether the President could make a recess appointment for a Chief Coiner at the US Mint. The vacancy technically arose during a session of Congress when the position was first created, but went unfilled until the Senate adjourned. The Founders at that time were distinctly split on the answer. Some, like Hamilton and Randolph, agreed with your reading and thought the recess appointment couldn't be made. Others, like Adams, Washington, and Madison, took the exact opposite view. Still others, led by Jefferson, sat on the fence about it.

Since that first argument there have been several conflicting Attorney General opinions issues that brushed on the subject. Those don't help us much either as the official position of the AG flip-flopped back and forth over the years as well.

So the historical record is 100% unclear as to the original meaning of the phrase. There's no way anybody can pull out a dictionary today and say "that's what it means" because even the guys who wrote the damn thing couldn't agree on it. You can consult as many dictionaries as you want, it won't help solve anything.

What we DO know is that Presidents have been making intrasession recess appointments for vacancies arising during Senate sessions for nearly 100 years. Calvin Coolidge made the first one and every President since then has kept up the practice. George Bush appointed John Bolton in 2005 during the normal August recess for a vacancy that arose in January during the normal Senate session. It's not like there's anything at all unusual about it. It's been the accepted interpretation of the law for decades.

So what we have here is a group of Founders complete split on the meaning of the term plus 100 years of everybody agreeing on what it means and setting precedent on it through the actions of the President and Congress. In such cases precedent has to win. I know Scalia poo-poo'd that notion during the oral argument, but you can't just throw out 100 years of executive branch actions and court rulings. All of that would be subject to challenge if the Court adopts your reading. There will be chaos in the federal courts as people rush to challenge 20-year-old convictions and rulings. I can't see anyway that the Court will do that or that it's the correct ruling if they do.

History just isn't on your side of the argument here. There was never any agreement between the Founders on the meaning. The historically accepted practice has to be given extraordinary weight here.

 

[Hutch]

* Hutch reads thread *

* Hutch goes back to top to confirm this really is a thread in the USA Politics Forum *

* Hell freezes over *

I mean, a respectful, insightful and intelligent discussion of viewpoints between two posters in the political forums. Who woudla thunk it?

Breif interruption ended. Please continue on, gentlemen. Fascinating stuff.

 

[Cool Hand Luke]

They absolutely should NOT call it a political question. You've made a great case in this post as to why. Yes, the Constitution is silent on what a recess is. However, the recess appointment clause is not quite so silent on when the power maybe used, as I described above.

And it's precisely because the Senate which decides when it is in recess that this is a problem. The Senate decided it was in session, and really could not legally be out of session because the House wouldn't agree to adjourn. The Senate was in session but the president decided it wasn't (although only for confirmation votes, but not for votes passing legislation) and appointed people to positions for which the Senate must confirm them. If the court cannot decide if someone was improperly appointed, who does?

.
In such cases the PEOPLE decide. That's the whole point of the political question doctrine - that there are some things that the courts need to keep out of and let the voters decide for themselves. If they don't like Obama's appointments then vote for a Republican next time. Don't like the House blocking up the plumbing then toss the Republicans out. The doctrine is, in fact, a very right-wing/libertarian/get-the-government-off-my-back position. I'm actually a bit amused to see the Republicans arguing so forcefully against it simply because it happens to hurt them in this case.

If you look at the history of the doctrine this is EXACTLY the kind of case where it should be used. In Baker v. Carr (1962) the Supreme Court laid out the criteria for employing the doctrine as this:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Note that those are "or" factors - and here you've got pretty much every single one of them in play.

"Constitutional commitment of the issue to a coordinate political department"? Check. Article 1 gives the Senate plenary authority to set it's own rules.

"Lack of judicially discoverable and manageable standards for resolving it"? Check. As I noted above, the Founders were in complete disagreement over this question. You could study the history for another 100 years and never come up with a definitive reading of the clause. There's no way the Court can come up with a sound ruling on it.

"The impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion"? Check. The very fact that this issue has caused so much angst demonstrates that it has important public policy considerations that are beyond the scope of the courts.

"The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government"? Double Check on that one. Issuing a ruling means embarrassing either the President or the Congress. No way outta that.

And so on and so on with the rest of the factors.

This is a classic spot for political question doctrine to be used. They don't have to do it, but we've got fifty-year-old, oft-affirmed decisions from the very same court saying that this is exactly the kind of case they should keep their nose out of.

It's easy. You call it a separation of powers question, because that's precisely what it is.

.
Well, if it's a powers question then how do you justify the actions of the House?

The Constitution specifically limits the appointments power to the President and the Senate. In this case you've got the House openly and explicitly acting to interfere with those powers in a way that the Founders clearly never intended.

If you call this a Separation of Powers issue then score one for the President because the House is interfering with his explicitly enumerated appointments power by using an extraordinary Article I backdoor trick to obstruct him.

 

[theprestige]

It has, in fact, been the official position of the Justice Department since 1921 that the definition of a Senate recess for the purposes of the Appointments Clause was anytime that the Senate was unable "to receive communications from the President or participate as a body in making appointments". This language is actually embodied in a formal US Attorney General opinion from that same year.

[...]

The only thing Obama did was to actually rely on what had been the law since 1921...

Since when have Justice Department memos been law?

 

[BobTheCoward]

I was intrigued by the part where the justices discussed that given the state of technology, the Senate could reasonably declare itself never in recess.

If the function of the clause was to appoint people when the senate was unavailable (dont know if true, but lets assume), then appointing person X when the senate has explicitly said they would not approve person X seems to be like an abuse. Is that ever a factor in rulings?

What was the first instance where the president appointed someone in the recess because the senate dismissed the candidate while in session?

 

[Cool Hand Luke]

Since when have Justice Department memos been law?

.
Since the Judiciary Act of 1789.

AG and OLC opinions are considered to be binding on the Executive Branch and, as far as I know, always have been. The 1921 AG opinion was, therefore, effectively the law as far as the President is concerned since the day it was issued and every administration since that point regarded it as such.

Yes, you can argue that there's nothing in the Constitution or the common law about those opinions being binding, that the statutory powers of the AG in 28 USC are not clear on this point, and that the President, as Chief Executive, can overrule the opinions on his own anytime he wants. I would then counter that your argument is completely moot because every single President and Executive Branch official treats the opinions as though they are binding and will continue to do so no matter what argument anybody wants to make to the contrary. You can argue all day about it. The Executive Branch is still going to follow those opinions.

Justice Department memos are treated with similar, although lesser deference. While they're not considered binding they are afforded great respect and are overridden inside the Executive Branch only rarely and when circumstances absolutely demand it. How many tempests have blown up when a President or agency doesn't follow a Justice Department memo on something? It's not something that's taken lightly.

The courts, of course, are allowed to disagree with AG opinions and often do. That's exactly what's happened in this case. Until that happens and a court makes a ruling on the subject the AG opinion is law inside the Executive Branch.

 

[theprestige]

.
Since the Judiciary Act of 1789.

AG and OLC opinions are considered to be binding on the Executive Branch and, as far as I know, always have been. The 1921 AG opinion was, therefore, effectively the law as far as the President is concerned since the day it was issued and every administration since that point regarded it as such.

Yes, you can argue that there's nothing in the Constitution or the common law about those opinions being binding, that the statutory powers of the AG in 28 USC are not clear on this point, and that the President, as Chief Executive, can overrule the opinions on his own anytime he wants. I would then counter that your argument is completely moot because every single President and Executive Branch official treats the opinions as though they are binding and will continue to do so no matter what argument anybody wants to make to the contrary. You can argue all day about it. The Executive Branch is still going to follow those opinions.

Justice Department memos are treated with similar, although lesser deference. While they're not considered binding they are afforded great respect and are overridden inside the Executive Branch only rarely and when circumstances absolutely demand it. How many tempests have blown up when a President or agency doesn't follow a Justice Department memo on something? It's not something that's taken lightly.

The courts, of course, are allowed to disagree with AG opinions and often do. That's exactly what's happened in this case. Until that happens and a court makes a ruling on the subject the AG opinion is law inside the Executive Branch.

So... not actually law, then?

And certainly not binding on matters that extend beyond the boundaries of the Executive branch, right?

I mean, if the Legislature says they're in session, and the Executive shows up waving an AG memo that says they're not, it's binding on him, but is it binding on them?

 

[Cool Hand Luke]

What was the first instance where the president appointed someone in the recess because the senate dismissed the candidate while in session?

.
I don't know when the first time was - Teddy Roosevelt maybe? - but the recess appointment of John Bolton as UN Ambassador that I mentioned above fits that bill.

The Senate did not directly vote him down, but their was a filibuster against him that effectively killed his nomination. There were two cloture votes on the filibuster and the margin against him grew on the second vote with some Republicans openly calling for Bush to withdraw him and pick somebody else. It then came out that he had made inaccurate statements to the Senate in his written confirmation statements and the bottom really fell out of his bucket. There was no possible way he was ever going to be confirmed.

Bush held fast, though, and appointed him during the 30-day August Senate recess despite howls from pretty much every direction. IIRC Bolton then resigned just before the end of the next Senate session so that the Senate couldn't chuck him out on their own. Probably the highest level "You can't fire me, I quit!" other than Richard Nixon.

Note my mention of Teddy Roosevelt. In 1903 the Senate adjourned for a few hours. In that time he made more than 160 recess appointments. Although I have not gone to look them all up I think it's pretty certain that at least some of those folks were not high on the list of likely confirmees.

 

[Cool Hand Luke]

I mean, if the Legislature says they're in session, and the Executive shows up waving an AG memo that says they're not, it's binding on him, but is it binding on them?

.
Which is exactly why it's at the Supreme Court right now, yes?

And if you'd like the Senate's original opinion of when recess appointments can be made you can find it in the words of the Senate Judiciary Committee from 1905 that says the following:

It was evidently intended by the framers of the Constitution that [the word “recess”] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments. . . .

That's the language that the 1921 AG opinion was based on. The AG didn't just make it up. He adopted the Senate's own opinion of its own rules for the Executive Branch for follow.

So it's kinda difficult to imagine how anybody can argue about the historical understanding and practice here. The Senate has been saying that these pro forma sessions don't count for 110 years. The Executive has been saying they don't count for 90 years. How anybody can now make the argument that they suddenly DO count is beyond me.

You simply can't jump up, wave your hands around, and say that everything's going to be different now and nothing that came before counts. Harry Reid was wrong when he did it back in 2007 and the Republicans in the House are wrong for doing it now. If we applied that kind of behavior on a regular basis the government would REALLY be screwed up. This whole mess should never have come up in the first place.

 

[Cool Hand Luke]

So... not actually law, then?

.
And before I forget to address this . . . Yes, it is actually law.

There are many different types of law. "The law" is not limited to things in the Constitution or laws passed by Congress. Court opinions are "law". Executive agency regulations are "law". Treaties are "law".

Congress gave the AG power to issue opinions to the President, Executive Branch agencies, and the military back in 1789. That power is still preserved in the statutes today. The AG's opinions are "law" in that respect.

Just because Congress doesn't put it's stamp of approval on AG opinions doesn't make them moot. There's lots of law that Congress never directly gets involved in. It doesn't mean that this kind of law isn't binding on people.

Just try violating the Federal Tax Regulations - which are never directly passed by Congress and never signed by the President - and you'll quickly discover just how binding such law is.

 

[Grizzly Adams]

.
Yes, this will almost certainly be in Scalia's concurrence or dissent. I'm not sure the rest of the Court is buying it though - and not too many other people are either.

If you listen to or read the transcript of the oral argument several of the justices expressed skepticism about this approach. The meaning of the word "happen" was singled out with the strong suggestion that its meaning has changed significantly from the days of the Founders. I think the extraordinarily limited reading of the word "the" is an even bigger stretch.

I haven't read the complete transcript (I'm waiting for the audio recording to come up in my podcast shuffle) but I did flip through it to look for references to the "may happen" restriction. I saw the justices being pretty evenly hard on the arguers from both sides and wouldn't characterize the questioning as being skeptical in favor of one side or another (except Scalia, of course). Again, I haven't read the whole thing but that was my impression from the few pages I did read. (And I didn't even look for references to "the" recess.)

More importantly, I think, is the fact that everybody has been interpreting those same words in a different way for the last 200+ years.

Even if we accept that narrative, the fact remains that this situation is completely novel. The Senate was not (and legally could not have been) in recess, and they even passed laws which Obama signed during this same period. What presidents have been doing for 200+ years may be right or wrong, constitutionally speaking, but no president has done what Obama did.

.
In such cases the PEOPLE decide. That's the whole point of the political question doctrine - that there are some things that the courts need to keep out of and let the voters decide for themselves. If they don't like Obama's appointments then vote for a Republican next time. Don't like the House blocking up the plumbing then toss the Republicans out. The doctrine is, in fact, a very right-wing/libertarian/get-the-government-off-my-back position. I'm actually a bit amused to see the Republicans arguing so forcefully against it simply because it happens to hurt them in this case.

It's a ridiculous interpretation because it effectively nullifies the advice and consent clause - the president can appoint whomever, to whatever, whenever, and there is no remedy anyone can pursue except voting someone out of office? Possibly four years in the future? Advice and consent is there and it can't be nullified by invoking the "political question" doctrine. That doctrine is better reserved for a situation in which the Senate refuses to vote on a nominee or the House refuses to consent to an adjournment.

Note that those are "or" factors - and here you've got pretty much every single one of them in play.

"Constitutional commitment of the issue to a coordinate political department"? Check. Article 1 gives the Senate plenary authority to set it's own rules.

Yes, and the president has ignored the Senate's authority to do so.

"Lack of judicially discoverable and manageable standards for resolving it"? Check. As I noted above, the Founders were in complete disagreement over this question. You could study the history for another 100 years and never come up with a definitive reading of the clause. There's no way the Court can come up with a sound ruling on it.

On this case, yes there is because (as I said above) this has never been done before.

"The impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion"? Check. The very fact that this issue has caused so much angst demonstrates that it has important public policy considerations that are beyond the scope of the courts.

I'm going to be completely honest here - I'm not even sure I understand what they are saying with this one.

"The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government"? Double Check on that one. Issuing a ruling means embarrassing either the President or the Congress. No way outta that.

I don't read that as "embarrassment". The Executive and Legislative Branches may both be embarrassed if the court strikes down legislation as unconstitutional. If anyone has expressed a lack of respect for a coordinate branch of government it's the president who elected to ignore the fact that the Senate was in session and was even able to pass legislation. One branch's blatant disregard for another branch's due respect does not obligate the third branch to do nothing.

Well, if it's a powers question then how do you justify the actions of the House?

The Constitution specifically limits the appointments power to the President and the Senate. In this case you've got the House openly and explicitly acting to interfere with those powers in a way that the Founders clearly never intended.

If the situation is really as dire as it may appear, the president may exercise his power to adjourn the houses as they cannot agree to adjourn. He didn't.

If you call this a Separation of Powers issue then score one for the President because the House is interfering with his explicitly enumerated appointments power by using an extraordinary Article I backdoor trick to obstruct him.

But the decision to adjourn is delegated to each chamber of Congress by the Constitution. There is no provision for recess appointments in the case the House is being a pain.

 

[Grizzly Adams]

* Hutch reads thread *

* Hutch goes back to top to confirm this really is a thread in the USA Politics Forum *

* Hell freezes over *

I mean, a respectful, insightful and intelligent discussion of viewpoints between two posters in the political forums. Who woudla thunk it?

Breif interruption ended. Please continue on, gentlemen. Fascinating stuff.

Would it make you feel more at home if I said anyone who disagreed with me was a poopyhead?

 

[SezMe]

It's a ridiculous interpretation because it effectively nullifies the advice and consent clause - the president can appoint whomever, to whatever, whenever, and there is no remedy anyone can pursue except voting someone out of office?

Hey, poopyhead. ('jes kidding - I echo Hutch's post; excellent discussion on a very important matter.)

But under this interpretation, isn't the Senate going into pro forma recess also nullifying the advice and consent clause. As noted, now they can simply never go into recess and the remediation for that action would also be delayed until the next election.

 

[Cool Hand Luke]

The Senate was not (and legally could not have been) in recess, and they even passed laws which Obama signed during this same period.

.
Come on now, that's NOT what happened.

The full Senate didn't convene. Their was no roll call. Nobody flew back from Christmas break to cast a vote. No debate was heard.

What you're calling "passing a law" was nothing more than Harry Reid getting up and announcing for the Congressional Record that there was unanimous consent in the Senate that if the House passed a bill that was identical to the one already passed in the Senate then the Senate would consider the bill read and passed without further action on its part.

Reid and Mark Warner (who was Acting President pro tem that day) were the only two Senators in the chamber when it all went down. There wasn't even a quorum present for legislative action to be taken let alone a vote. It was all simply a formality set up so the bill - an extension of the payroll tax break - would take immediate effect without further delay after return from the House. According to the Congressional Record the Senate convened at 9:30 and 21 seconds AM and adjourned at 9:31 and 46 seconds AM - a whole 1 minute and 25 seconds of hot Senate action.

That's about as far from "passing a law" as it gets. The Senate had already voted on and approved the thing before the recess and the pro forma session. Nothing that happened during the break could possibly be considered a part of enacting legislation.

 

[Cool Hand Luke]

And before this poopyhead thing gets out of hand, let's all remember that what we're talking about here is a VERY, VERY MINOR ISSUE in the scope of running the US government.

Recess appoints - even those to the federal bench - are only good until the end of the next Congress. That means these appointees get, at very most, two years in office before they must be confirmed by the Senate or lose their jobs. In practice most recess appointees are never going to serve for more than 12 months and even when they're in office they're just acting on the established policies of the sitting President, not making things up for themselves.

And then you've got the issue of political repercussions. No President wants to pull a Bush move and appoint another John Bolton to some post. If the Pres is going to use a recess appointment these days you can pretty well bet it's going to be a non-controversial figure. It's not like Obama's NLRB appointees were convicted child molesters. As far as I know there was no opposition to the chosen appointees at all. The Republicans just wanted to shut down the NLRB - they didn't have anything bad to say about the individual nominees. After Bolton no President is going to risk political capital by filling a recess appointment with somebody who'll screw it up or that the public won't accept in the job.

So it's the very rare day that a recess appointment has any serious impact at all on how the government runs. So what if somebody got stuck on the NLRB by Obama? That doesn't change the labor laws. It doesn't alter the Constitution. It doesn't summon Cthulu from the depths. There's nothing really going on here except a bunch of powerful people trying to crap all over one another for crapping's sake.

In the end this whole thing is like a pissing match between two guys with prostate enlargement. There's an awful lot of grunting and complaining going on but very little will ever emerge from all the effort.

The case is only in the mainstream news because Bieber managed to stay out of trouble on the day it hit the court.

 

[Grizzly Adams]

Hey, poopyhead. ('jes kidding - I echo Hutch's post; excellent discussion on a very important matter.)

But under this interpretation, isn't the Senate going into pro forma recess also nullifying the advice and consent clause. As noted, now they can simply never go into recess and the remediation for that action would also be delayed until the next election.

Yes, they could do just that. However, it simply be making the recess appointment clause never applicable and wouldn't be doing anything with advice and consent. Since the Senate makes their own rules per the Constitution, there is nothing that can be done by another branch and election is the sole remedy.

 

[Grizzly Adams]

.
Come on now, that's NOT what happened.

The full Senate didn't convene. Their was no roll call. Nobody flew back from Christmas break to cast a vote. No debate was heard.

What you're calling "passing a law" was nothing more than Harry Reid getting up and announcing for the Congressional Record that there was unanimous consent in the Senate that if the House passed a bill that was identical to the one already passed in the Senate then the Senate would consider the bill read and passed without further action on its part.

Reid and Mark Warner (who was Acting President pro tem that day) were the only two Senators in the chamber when it all went down. There wasn't even a quorum present for legislative action to be taken let alone a vote. It was all simply a formality set up so the bill - an extension of the payroll tax break - would take immediate effect without further delay after return from the House. According to the Congressional Record the Senate convened at 9:30 and 21 seconds AM and adjourned at 9:31 and 46 seconds AM - a whole 1 minute and 25 seconds of hot Senate action.

That's about as far from "passing a law" as it gets. The Senate had already voted on and approved the thing before the recess and the pro forma session. Nothing that happened during the break could possibly be considered a part of enacting legislation.

But something took place and it had to take place in order for the law to be passed, right? So it seems the Senate wasn't completely out of session.

Recess appoints - even those to the federal bench - are only good until the end of the next Congress.

Well, this doesn't quite mesh with the administration's view of the recess appointment clause. If any old recess counts as a recess, then the Senate is only in session until they recess. Per the recess appointment clause, any appointment must then expire whenever the Senate next concludes its next session. Which could be a month, a week, or even an hour.

In the end this whole thing is like a pissing match between two guys with prostate enlargement. There's an awful lot of grunting and complaining going on but very little will ever emerge from all the effort.

I lol'd.

 

[Cool Hand Luke]

But something took place and it had to take place in order for the law to be passed, right? So it seems the Senate wasn't completely out of session.

.
Well, I think the answer to that tends to be colored by your political orientation. The Republicans are jumping up and screaming "LEGISLATIVE ACTION!!! LEGISLATIVE ACTION!!". The Democrats are rolling their eyes and yawning. It's probably a moot point. I can't see the Court hanging their hat on this.

Per the recess appointment clause, any appointment must then expire whenever the Senate next concludes its next session. Which could be a month, a week, or even an hour.

.
Yes, that's technically true for intersession appointments depending on the timing of the appointment and how the Senate handles its calendar. It's not practicably true, though, because these days the Congressional calendar is pretty much fixed.

Intrasession appointments, however, have always applied for the remainder of the current session of Congress plus the full length of the next. That pretty much makes them good for a minimum of one year and a max of two. Intrasession appointees can serve much longer than intersession ones can.

This actually happened during Bush's term. He made recess appointments of two federal appeals court judges just a few weeks apart. The first one was an intersession appointment. The second an intrasession one. The judge that was appointed later actually served twice as long as the other because he had the advantage of the intrasession appointment timing.

But this is also, as mentioned above, functionally limited by politics. No President is going to waste political capital by appointing somebody for one month. If they're going to do it they'll want the appointee in office for as long as possible to get the most bang for their political buck and to demonstrate just how much awesomeness the President exhibited by sticking such a wonderful appointee into that position. You give the appointee lots of time to show they were right for the job.

That's yet another reason why the Bolton appointment was a complete fail for Bush. Bolton got to the UN and (as the Senate had expected) mucked it all up. Even Kofi Annan gave him the back of his hand. Bolton sent a lasting message to future Presidents about the need to carefully consider their recess appointees.

 

[Grizzly Adams]

.
Well, I think the answer to that tends to be colored by your political orientation. The Republicans are jumping up and screaming "LEGISLATIVE ACTION!!! LEGISLATIVE ACTION!!". The Democrats are rolling their eyes and yawning. It's probably a moot point. I can't see the Court hanging their hat on this.

The problem is that it's not just that. The Senate was holding pro forma sessions every three days. Even without any legislative action they were still technically in session, but the fact that they actually did something just lends further credence to the notion that they were not in recess.

Yes, that's technically true for intersession appointments depending on the timing of the appointment and how the Senate handles its calendar. It's not practicably true, though, because these days the Congressional calendar is pretty much fixed.

Intrasession appointments, however, have always applied for the remainder of the current session of Congress plus the full length of the next. That pretty much makes them good for a minimum of one year and a max of two. Intrasession appointees can serve much longer than intersession ones can.

I don't think you got my point, probably because I didn't phrase it very well. If the Senate is in session, they are not in recess. If the Senate is in recess, they are not in session. To take the administration's position seriously, the caveat that recess appointments expire at the end of the next session should mean then that the next time the Senate breaks for long enough that a recess appointment could be made, any recess appointments made in the prior recess should expire. Which would mean recess appointments should last no more than maybe a week after the Senate convenes again. For the weekend break.

 

[Cool Hand Luke]

I don't think you got my point, probably because I didn't phrase it very well. If the Senate is in session, they are not in recess. If the Senate is in recess, they are not in session. To take the administration's position seriously, the caveat that recess appointments expire at the end of the next session should mean then that the next time the Senate breaks for long enough that a recess appointment could be made, any recess appointments made in the prior recess should expire. Which would mean recess appointments should last no more than maybe a week after the Senate convenes again. For the weekend break.

.
Ooooh, OK. I see what you're saying.

So the term "shall expire at the End of their next Session" has always been taken to mean the point when the Senate adjourns sine die on the very last day of the next annual session. I frankly don't know how or when that practice came about. There may be caselaw on it someplace ages ago or it could just be another historical understanding between the branches. I can't recall ever seeing it questioned before. There is, though, a clear distinction between the two types of recess in terms of parliamentary procedure that we can rely on. For an intrasession recess the Senate adjourns with a specified date and time to reconvene. For an intersession recess there's no day specified (hence adjournment sine die - "without date").

So, if I'm hearing you correctly now, what you're saying is that recesses for the purpose of all of Article II, Section 2 should only be those in which the Senate has adjourned sine die and entered an intersession recess. That was effectively the decision of the lower court.

If that's your argument then it risks more than you may think.

If you read the phrase "during the Recess of the Senate" as only applying to intersession recess following sine die adjournment then you also have to apply the same reading to the phrase ""shall expire at the End of their next Session", correct? If we do that with absolute strictness and the Senate continues to hold pro forma sessions and never adjourns sine die then "the End of their next Session" never comes and recess appointments will never expire. Under that interpretation a President could effectively make life appointments if the Senate stayed in perpetual pro forma session. That would give enormous power to the Party that controlled both the Presidency and one branch of Congress. It would allow a complete end-run around the "advice and consent" of the Senate for as long as that party held office.

On the other hand, if you go all the way to the opposite extreme and read both phrases as applying to both regular and sine die adjournments then the power shifts dramatically to the Senate. Under that reading, as you point out, all the Senate would have to do to quash a recess appointment would be to adjourn for an hour, come back into session, and then adjourn for an hour again. All recess appointments would then expire at "the End of the next Session". That reading of the phrase would make the President's power under Article II, Section 2 effectively meaningless. The Senate could dispose of his recess appointments without breaking a sweat.

So it's clear that neither of those two extremes can be right. Either of those two readings screws up the intent of the Advice and Consent Clause.

The way we've always gotten around it in the past is through a political agreement between the branches. Presidents got to read the first part as applying to all recesses and the Senate was always put into sine die adjournment at the end of the annual session so that those appointments would eventually expire. In effect, we've always agreed to a compromise that makes the Article work in a way that's good for everybody. Power between the branches stayed in balance until Reid and Boehner got their hands in the game.

Canning is now mucking up that system by asking the Supreme Court to chuck out the compromise and come up with a ruling that forces a bad outcome on everybody. If the Supreme Court actually issues a ruling it will either be: 1) an illogical split-the-baby thing where they maintain the status quo compromise by applying different meanings to different sections of Article II, Section 2 (which will piss off Scalia to no end, ), or 2) a definitive ruling where they try to pick the lessor of two evils and end up screwing everybody over by forcing a definition of recess that hands too much power to one branch of government or the other. We're asking the Court to make a bad decision either way.

That's why I say the Court needs to apply political question doctrine and keep out of it. There's no good decision to be had in this case. It's a choice between two bad outcomes.

So I agree completely that you could read Article II, Section 2 the way you suggest. You could also read it in the complete opposite of the way you suggest. What I'm saying is that you shouldn't read it either way. I think doing so creates even more potential for recess appointment shenanigans and political strife down the road.

The old compromise worked fine for everybody until people injected politics into it. Maybe the best thing is to just lock Reid and Boehner in a room with copious food and drink but no toilet and not let them out until they agree to end this stupid mess. It really is a political fight that's spilled over into the courts. We should be forcing the political branches to clean it up for themselves.

 

[Grizzly Adams]

.
Ooooh, OK. I see what you're saying.

So the term "shall expire at the End of their next Session" has always been taken to mean the point when the Senate adjourns sine die on the very last day of the next annual session. I frankly don't know how or when that practice came about. There may be caselaw on it someplace ages ago or it could just be another historical understanding between the branches. I can't recall ever seeing it questioned before. There is, though, a clear distinction between the two types of recess in terms of parliamentary procedure that we can rely on. For an intrasession recess the Senate adjourns with a specified date and time to reconvene. For an intersession recess there's no day specified (hence adjournment sine die - "without date").

I get that and you get that. However, if we're going to allow the Executive and the courts to eliminate the reference in the Constitution to "the recess" and instead allow it to mean any recess, then it naturally follows that the beginning of any recess ends a session, whatever the variety.

So, if I'm hearing you correctly now, what you're saying is that recesses for the purpose of all of Article II, Section 2 should only be those in which the Senate has adjourned sine die and entered an intersession recess. That was effectively the decision of the lower court.

Were you confused that was my position? No snark intended, I just thought I had made that pretty clear from the beginning, and am curious if you thought I was arguing another position and whether that changes any of your arguments, or if you're stating that you now understand my position on the duration of recess appointments because I explained it better.

If that's your argument then it risks more than you may think.

If you read the phrase "during the Recess of the Senate" as only applying to intersession recess following sine die adjournment then you also have to apply the same reading to the phrase ""shall expire at the End of their next Session", correct? If we do that with absolute strictness and the Senate continues to hold pro forma sessions and never adjourns sine die then "the End of their next Session" never comes and recess appointments will never expire. Under that interpretation a President could effectively make life appointments if the Senate stayed in perpetual pro forma session. That would give enormous power to the Party that controlled both the Presidency and one branch of Congress. It would allow a complete end-run around the "advice and consent" of the Senate for as long as that party held office.

Respectfully disagree on this point. The Constitution requires the Congress to convene every year on 3 January. This has always been considered, since the First Congress (although the date was different, as the 20th amendment altered the prescribed date), to be the beginning of each session of Congress and, in alternating years, the beginning of the next numbered Congress. Regardless of how long the Senate has been in session, a new session always starts on 3 January.

On the other hand, if you go all the way to the opposite extreme and read both phrases as applying to both regular and sine die adjournments then the power shifts dramatically to the Senate. Under that reading, as you point out, all the Senate would have to do to quash a recess appointment would be to adjourn for an hour, come back into session, and then adjourn for an hour again. All recess appointments would then expire at "the End of the next Session". That reading of the phrase would make the President's power under Article II, Section 2 effectively meaningless. The Senate could dispose of his recess appointments without breaking a sweat.

The effect is rather ridiculous, which is why the premise itself (that the recess appointment power is available any time the Senate isn't actively in session) is flawed -- because it is the natural result of the premise.

So it's clear that neither of those two extremes can be right. Either of those two readings screws up the intent of the Advice and Consent Clause.

I don't agree. Your understanding of sessions of Congress is, I think, just incorrect. As for the second interpretation, it doesn't affect the Advice and Consent Clause at all.

That's why I say the Court needs to apply political question doctrine and keep out of it. There's no good decision to be had in this case. It's a choice between two bad outcomes.

The Court isn't limited to your two conclusions. It can do many things between those two options. Regardless, I think the political question doctrine excuse is a copout and its use here would castrate the Advice and Consent requirement and the delegation to the Senate of the power to decide its own rules.

No matter how you slice it, the Senate was in session by its own rules and the president made a recess appointment in spite of that fact. Making the advice and consent requirement a political question would effectively negate the requirement to obtain it.