Intrasession Recess Appointments -- Canning v. NLRB

This is the fourth and final post on this topic.

In the previous posts we provided background, then discussed the text of the Constitution and a methodology for comparing arguments, and – in the penultimate post – aligned the Eleventh Circuit opinion from 2004 with the rebuttals of its Dissent, and the Fourth Circuit in January 2013.

This final post is not about the rebuttals of the Dissent and Fourth Circuit, but about their own arguments, answering in the Negative: that the President does not have authority to issue a recess appointment during an intrasession break. They went much further: the law of the Fourth Circuit is now also that a recess appointment can only be made for vacancies that occur during the recess. And you cannot wait for a recess, or a later recess, to make an appointment that the Senate opposes. I prepared an analysis of these arguments as well, but will save the gentle [sic] reader from this further torture.

Unanimous Opinion of the Fourth Circuit (Canning v NLRB, 2013)

PREFACE:

·         In this circumstance, the Senate was operating under a unanimous consent agreement.

o   They had a handful of Senators stay in town to hold pro forma sessions every three days.

o   The resolution called for “no business” to be conducted during these sessions.

(They didn’t want to authorize three Senators to pass laws all alone.)

o   Business was nonetheless conducted during this intrasession break:

o   The Senate passed an extension to payroll tax rates.

o   They convened the session of the 112^th Congress.

o   It is plain that the Senate was available for business.

WORDS:

·         We start by noting an advantage to our interpretation. It is one we will come back to: “Intersessional recess” provides clear content to “the Recess”; the NLRB’s proposal, that intrasessional breaks are also subject to recess appointments, provides no minimum break duration. In theory, it allows the President to grant a commission without Advice and Consent during a lunch break.

·         Looking at the words, the definite article does make a difference.

o   One stilted example used by the 11^th Circuit to dismiss the definite article (“The dog is a quadruped”), is insufficient within the full structure of the Constitution.

o   We will look at structure in more detail.

o   The Eleventh ignored the structure and misstated the purpose of the Constitution, and then hung their hat on “the dog is a quadruped.” We must do better than that.

·         The Constitution’s consistently different usage between “adjournment” and “the Recess” reinforce giving conventional weight to the definite article. “Adjournment” is never given the definite article: “recess” is in every usage.

·         But enough about this…

STRUCTURE:

·         The structure of the clause further supports our reading, by creating a dichotomy between “Session” and “the Recess.” We can support the existence of this dichotomy in three ways:

o   “The appointment may be made in “the Recess,” but it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session (and therefore available for Advice and Consent), or it is in the recess (and unavailable for Advice and Consent). If it has broken for three days within an ongoing session, it is not in “the Recess.””

o   Half of that dichotomy, the meaning of “Session” is not disputed. Nobody thinks that an intrasession, two-week break creates distinct sessions on either side of it. Since it appears that, together, “Session” and “the Recess” are exhaustive, the lack of dispute over “Session” forces the interpretation of “the Recess” as intersessional.

o   “When the Federalist Papers [No. 67] spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” For there to be an “ensuing session,” it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in “the Recess.””

[This last point, from Federalist No. 67 is the strongest, logically. In fact, I think it is a sledgehammer. But it is the weakest, and placed last, because words of Alexander Hamilton outside of the Constitution must take a back seat to the words of the Constitution. This placement in the argument is good form. –Tim]

HISTORY:

·         Available evidence shows that no President attempted to make an intrasession recess appointment for the first 80 years after the Constitution was ratified.

·         Presidents made only three documented intrasession recess appointments prior to 1947: that’s three occurrences in the first 150 years of our nation.

·         Paralleling the Supreme Court’s reasoning in Printz, we conclude that the infrequency of intrasession recess appointments during the first 150 years of the Republic “suggests an assumed absence of [the] power” to make such appointments.”

[I’ll say it again, this is simply devastating to the arguments on the other side. At the end of this post, I’ve added discussions about the other point in this opinion: it holds that you also can only make a Recess Appointment if the vacancy actually starts – happens, as the Constitution says – during the recess. You cannot wait for a recess. In support of this, the opinion rallies a long list of high-caliber early sources with a clear and consistent understanding. Recent practice gets thrown off the see-saw when all of this evidence comes to sit down. –Tim]

PURPOSE:

·         Recess appointments are an auxiliary to Advice and Consent:

o   To avoid government paralysis in those long periods when senators were unable to provide advice and consent, the Framers established the “auxiliary” method of recess appointments.

o   They put strict limits on this method, requiring that the relevant vacancies happen during “the Recess.”

o   It would have made little sense to extend this “auxiliary” method to any intrasession break, for the “auxiliary” ability to make recess appointments could easily swallow the “general” route of advice and consent.

o   The President could simply wait until the Senate took an intrasession break to make appointments, and thus “advice and consent” would hardly restrain his appointment choices at all.

·         The alternative fails:

o   To adopt the Board’s proffered intrasession interpretation of “the Recess” would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause.

o   As the Supreme Court observed in Freytag v. Commissioner of Internal Revenue, “The manipulation of official appointments had long been one of the American revolutionary generation’s greatest grievances against executive power, because the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism.”

o   In short, the Constitution’s appointments structure — the general method of advice and consent modified only by a limited recess appointments power when the Senate simply cannot provide advice and consent — makes clear that the Framers used “the Recess” to refer only to the recess between sessions.

LACK OF ALTERNATIVES:

We consider and reject alternatives to our interpretation.

• Any break (lunch break, dinner break):
• Whatever “the Recess” can mean, it cannot be made to mean this.
• This would be no separation of powers at all.
• Some practical period of time, like 10 or 20 days:
• As the Supreme Court has observed, when interpreting “major features” of the Constitution’s separation of powers, we must “establish high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” Plaut v. Spendthrift Farm, Inc.,

• Adjournment of more than 3 days, pursuant to the Adjournments Clause:
• The Adjournments Clause and the Recess Appointments Clause exist in different contexts and contain no hint that they should be read together.
• Nothing in the text of either Clause, the Constitution’s structure, or its history suggests a link between the Clauses.
• Without any evidence indicating that the two Clauses are related, we cannot read one as governing the other.
• We will not do violence to the Constitution by ignoring the Framers’ choice of words.
• “The Recess” is to be interpreted by the President:
• This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.
• The checks and balances that the Constitution places on each branch of government serve as “self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other.” Buckley v. Valeo, 424 U.S. 1, 122 (1976).
• An interpretation of “the Recess” that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.
• This cannot be the law.

PRACTICE:

• As to practical consequences of this ruling, Congress knows how to solve the problems caused when Senatorial Advice and Consent is unavailable.
• And a President knows how to get work done in an emergency.
• If work is urgent, the President has all the more reason to nominate an individual who can gain the consent of the Senate.

BONUS!!!!

Further held: A recess appointment is available to the President only when the Vacancy arises during the recess.

• The vacancy must actually happen – arise, by death or resignation, or disqualification, for instance  – during the recess. The President cannot wait until a recess to fill a position
• Bolstered by analysis of text first, then:
• Quoting: 1792, Edmund Randolph, the first Attorney General
• Quoting: 1799, Alexander Hamilton
• Quoting: Federalist No. 67
• Quoting: 1814 Senator Christopher Gore
• Other circuits have held to an “exist” interpretation of “happen”
• Those courts, however, did not focus their analyses on the original public meaning of the word “happen.”
• In arguing that happen could mean “exist,” the Evans majority used a modern dictionary to define “happen” as “befall,” and then used the same modern dictionary to define “befall” as “happen to be.”
• As the Evans dissent argued, “[t]his is at best a strained effort to avoid the available dictionary evidence.”
• A modern cross-reference is not a contemporary definition.
• The Board has offered no dictionaries from the time of the ratification that define “happen” consistently with the proffered definition of “happen to exist.”

Were Barack Obama's recess appointments to the NLRB unconstitutional?

Answer: Yes (though, importantly, they were not without precedent)

Question difficulty: Medium

Presidents fill vacancies in many governmental appointments with the advice and consent of the Senate. This was and is an important separation of powers, and part of the checks and balances of our constitution. It forces the Executive to make appointments that are acceptable to the Legislature. In Federalist 67, Alexander Hamilton identified concerns of nepotism, home-state favoritism, and fitness for office.

Of course, you wouldn't want a critical vacancy to go unfilled all summer long because the Senate was in recess. And this was more true in the 1780s, when gathering the Senate was a difficult burden -- and lengthy process -- that simply could not be done on short notice.

So the Constitution allows that presidents can forgo advice and consent during "the Recess of the Senate," and their recess appointment serves until the end of the next session. The original understanding of recess appointments (illuminated by the Federalist Papers and early practice) was that this was a supplemental procedure intended to help maintain government during times when the Senate was disabled by recess from providing their advice and consent. It was plainly understood not to be a compromise method by which the president could side-step the Senate by waiting for a recess to make the appointment.

 For this reason, early recess appointments of any sort were relatively rare. And until 1921, it was rare or unheard of to appoint someone through an intrasessional recess. Increasingly since then, presidents have made recess appointments when the Senate was out for even a couple weeks. Clinton made an intrasessional appointment during a nine-day break. Can you imagine the hysteria if a Chief Justice were appointed in such conditions? And presidents of both party no longer have any shame at all about waiting out the Senate to make an intersessional recess appointment.

 This practice of intrasessional recess appointments was specifically upheld -- over a powerful and right-minded dissent -- by the 11th Circuit Court of Appeals in 2004, when the constitutionality of an intrasessional appointment by George Bush was questioned and affirmed by that court. The court should have struck down George Bush's intrasessional appointment as an unconstitutional evasion of Advice and Consent.

 *** Pause for Reflection ***

 If you view this issue with partisan glasses, and you have a strong opinion that Barack Obama was either within our beyond his authority, pause and be honest: if you had never heard the facts of this case, but instead had before you the similar facts from the 2004 case -- that is, if we keep every essential thing the same but substitute George W. Bush for Barack Obama -- would you have a different "going in" position? Give this one a full minute of honest reflection, because the actions of Obama and Bush are going to be approved or rejected (with some caveats beyond our scope) in the one judgment we make. Their fortunes are tied together.

 ** End Pause. Resume Rush to Judgment. ***

 Partly in response to the 11th Circuit, interbranch warfare has been elevated further: the Senate now officially declares itself "not in recess" during short breaks to prevent the executive branch from claiming the right to a recess appointment during them, especially since the Senate is always willing and always able to fly back to Washington to take care of business, if needed.

 To do this, they essentially pass an agreement that during their breaks to travel home, visit with family or celebrate a holiday, the Senate remains in session. They agree that a couple of senators will hang out in DC and hold pro forma sessions every three days in which nothing is to be done except solicit new business, hear none and head out for margaritas again, and that if anyone wants to conduct business during the break they'd need to let everyone know. Importantly, during these periods (and during the one Barack Obama used) the Senate has in fact conducted business that needed to be conducted. So: the Senate is not disabled by such breaks from providing advice and consent if they are willing to do so.

 President Obama took the next logical step in this bipartisan battle for power between the branches. There was strong obstructionism going on at the time of this gambit. The Republicans of the Senate were seen as obstructionists, increasing sympathy for the president's attempts to complete his appointments to vacancies by alternate means. Obama made his appointments during a time when the Senate specifically said they were not in recess, and that they were available for business (though none was intended). He explained that a Senate that was scattered across the 50 states was plainly in recess, and that saying otherwise is only to pretend otherwise. When the Senate accused Obama of cheating, he replied "but you were on a break!"

 A company that wasn't happy with subsequent decisions of the NLRB sued, and the 4th Circuit has now -- January 25, 2013 -- held that these intrasessional appointments are not consistent with the Constitution's requirement for advice and consent, and the Executive branch (whatever the party) is hereby requested to get its hand out of the cookie jar.

If words have meaning, the 4th Circuit Court of Appeals correctly answered the question. The case of Canning v. NLRB will certainly be appealed to the Supreme Court, and I predict that SCOTUS will correctly uphold the 4th Circuit in a split, 6-3 decision. I'll go further, and predict that the opinion will be authored by Roberts, Kagan or Sotomayor, or else be issued per curiam. It will be a coveted opinion to write.

Answering this question isn't as easy as walking through a garden. But we can compare three arguments on the record to see whether a layman can find the truth in such a difficult matter. There is the prevailing majority's argument in the 11th Circuit case from 2004, the strong and correct dissent in that case, and the unanimous opinion in the recent 4th Circuit case.

So, can a layman find the truth in such a difficult matter? Oh yes he can. And that's what we'll do in the next posts.