Noel Canning v. NLRB

[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.

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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]

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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.

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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.

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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]

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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.

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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]

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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.