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Steven Semeraro
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08/07/2014

The Truth about the Supreme Court's Recess-Appointments Ruling
Bryan Wildenthal

[Bryan Wildenthal is a Professor of Law at Thomas Jefferson School of Law.  This is part 1 of an exchange between Professor Wildenthal and Professor Steven Semeraro.]

It's not often that my view of a constitutional issue diverges so utterly from that of my favorite national newspaper, the New York Times.

The Times's editorial regarding NLRB v. Noel Canning, going out on quite a limb, condemns even the narrow ruling agreed upon unanimously by all 9 Justices, that a president cannot simply unilaterally override the Senate's own position that it has remained in session (albeit "pro forma") in order to block a presidential "recess appointment" (bypassing Senate confirmation).

The Times complains that the Court's narrow unanimous ruling allows the Senate to get away with political obstruction. Perhaps so, but the Constitution does not provide remedies for every type of political abuse or obstruction by either the Senate or the President. We have a political process and elections to deal with that. Nor was it ever the purpose of the Recess Appointments Clause to give the President a trump card in confirmation disputes with the Senate. Rather, the Clase had the far narrower purpose, now obsolete, of enabling necessary appointments when the Senate was out of session during the horse-and-buggy era and could not be conveniently reconvened for weeks or months at a time.

Get a grip, Times! The administration's position in that regard was arrogant and untenable and it's hardly surprising it drew unanimous rejection from the Court, including both of President Obama's own appointees and all four Justices generally typecast as "liberal."

Of course, what happened to the days when "liberal" Justices, and liberals generally, were properly cautious about ALL presidential-power overreach, even of presidents of their own party? Do we forget so easily the abuses of presidents we did not like so much, like Nixon in Watergate and Johnson in Vietnam? This case presents the bizarre spectacle of the four most liberal Justices upholding major aspects of a power that was notoriously abused by President George W. Bush, far more often than by President Obama; while Justice Scalia's concurring opinion for four Justices, favoring a more comprehensive crackdown on recess-appointment abuse, cites approvingly to a brief filed against ​President Bush in 2004​ by​ the late great liberal Democratic​ Senator Ted Kennedy!

The more fundamental issues decided in this case go to broader issues of the President's recess-appointment powers. They may have somewhat limited practical significance, since the Court upheld the Senate's ability to block such appointments by staying in "pro forma session," but they are still inherently important and for what they say about the Justices's competing views and uses (or misuses) of history.

The New York Times refers to what it calls "the bizarre prescription of the United States Court of Appeals for the District of Columbia Circuit that such [recess] appointments can only be made between sessions of Congress, and then only when vacancies occur during that limited recess. An expansive interpretation of recesses has prevailed since the beginning of the republic, Justice Breyer wrote, showing a regard for history not shared by Justice Antonin Scalia and three of his conservative colleagues, who wrote a concurring opinion that supported the circuit court’s ruling."

The Times's view is utterly and completely wrong and off-base​, as is Justice Breyer's depiction of the relevant history. I urge you to read the opinions for yourself​:

As Justice Scalia accurately summarized, in arguably the finest opinion in his tenure on the Court (ironically, another leading candidate is his lone dissent in ​ Morrison v. Olson, the​ 1988 decision​ in which he urged a broad view of presidential appointment powers in another context; he also got that one right, in my view; he would have struck down the then-special prosecutor law, which Democrats only later learned to hate when it was used against President Clinton by Ken Starr):

First, as to whether recess appointments may only be made during "the Recess" between formal "Sessions" of the Senate:

"Intra-session recess appointments were virtually unheard of for the first 130 years of the Republic, were deemed unconstitutional by the first Attorney General to address them, were not openly defended by the Executive until 1921, were not made in significant numbers until after World War II, and have been repeatedly criticized as unconstitutional by Senators of both parties. It is astonishing for the majority to assert that this history lends 'strong support,' ante, at 11, to its interpretation of the Recess Appointments Clause [which, as Justice Scalia had already persuasively explained, is untenable under the text and history of the Clause].

"And the majority’s contention that recent executive practice in this area merits deference because the Senate has not done more to oppose it is utterly divorced from our precedent. 'The structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic,' Freytag, 501 U. S., at 880, and the Senate could not give away those protections even if it wanted to. See Chadha, 462 U. S., at 957–958 . . ."

(​Quoting ​Scalia, J., concurring in the judgment, slip pp. 25-26.)

As Justice Scalia also asks (slip p. 16): "If the Constitution’s text empowers the President to make appointments during any break in the Senate’s proceedings, by what right does the majority subject the President’s exercise of that power to vague, court-crafted limitations with no textual basis?" (Justice Breyer's majority opinion rips out of context an unrelated provision on congressional adjournments to say that a president can never make a recess appointment during a break shorter than 3 days, and invents out of whole cloth a 10-day minimum for a recess under which such an appointment is "presumptively" invalid; thus creating a nightmare of future litigation over whether the "presumption" may be overcome in some emergency situation.)

Second, as to whether such appointments may only be made to fill a vacancy which, as the Constitution very clearly states, "may happen during the Recess of the Senate" (if the broader meaning adopted by Breyer's majority had been intended, the Clause would obviously have referred simply to "any Vacancies during the recess of the Senate"):

"Washington’s and Adams’ Attorneys General read the Constitution to restrict recess appointments to vacancies arising during the recess, and there is no evidence that any of the first four Presidents consciously departed from that reading. The contrary reading was first defended by an executive official in 1823, was vehemently rejected by the Senate in 1863, was vigorously resisted by legislation in place from 1863 until 1940, and is arguably inconsistent with legislation in place from 1940 to the present. The Solicitor General has identified only about 100 appointments that have ever been made under the broader reading, and while it seems likely that a good deal more have been made in the last few decades, there is good reason to doubt that many were made before 1940 (since the appointees could not have been compensated [under the legislation referred to, in force from 1863 to 1940]). I can conceive of no sane constitutional theory under which this evidence of 'historical practice'—which is actually evidence of a long-simmering inter-branch conflict—would require us to defer to the views of the Executive Branch."

(​Quoting ​Scalia, J., concurring in the judgment, slip p. 47.)

​Like Justice Scalia, I also "can conceive of no sane constitutional theory under which this evidence of 'historical practice'—which is actually evidence of a long-simmering inter-branch conflict—would require us to defer to the views of the Executive Branch."

Scalia and his 3 colleagues are right in this case and Breyer and his 4 colleagues are wrong, plain and simple.

It is and was hypocritical that few if any Republican Senators joined Sen. Kennedy in 2004 in opposing President Bush's recess appointments, while all 45 joined in a brief opposing President Obama's in this case.

But why do Democrats, and progressive editorial voices like the New York Times, need to replicate such mindless politically-driven hypocrisy and opportunism (by some Republicans) on an enduring constitutional issue?

Justice Scalia can fairly defend himself from any charge of political hypocrisy on this issue: no case raising the recess-appointments issue came before the Court on the merits during the Reagan or Bush Administrations, and Justice Scalia has ruled against other expansive executive power claims in the past, e.g., rejecting Bush's detention without due process of a U.S. citizen in Hamdi v. Rumsfeld​ (2004​)​, a case that found him to the left of Justice Breyer, and dissenting against broad presidential use of "executive agreements" with foreign governments, without Senate ratification, in a 2003 case.

Does it occur to my progressive Democratic friends that President Obama, with his generally cautious and thoughtful approach to presidential power (at least compared to ​President ​G​eorge ​W. Bush, though Obama has abused his powers on some issues, like drones and targeted assassination of U.S. citizens abroad), will not be president forever?

Do they want to see future Republican presidents eagerly exploiting every executive-power loophole created by the Court or Obama?

As Justice Scalia very wisely summarized:

"[T]he majority’s insistence that the Senate gainsay an executive practice 'as a body' in order to prevent the Executive from acquiring power by adverse possession, ante, at 14, will systematically favor the expansion of executive power at the expense of Congress. In any controversy between the political branches over a separation of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch. See generally Bradley and Morrison, Historical Gloss and the Separation of Powers, ​126 Harv. L. Rev. 411, 439–447 (2012).

"All Presidents have a high interest in expanding the powers of their office, since the more power the President can wield, the more effectively he can implement his political agenda; whereas individual Senators may have little interest in opposing Presidential encroachment on legislative prerogatives, especially when the encroacher is a President who is the leader of their own party. (The majority would not be able to point to a lack of 'formal action' by the Senate 'as a body' challenging intra-session recess appointments, ante, at 15–16, had the appointing President’s party in the Senate not blocked such action on multiple occasions.) And when the President wants to assert a power and establish a precedent, he faces neither the collective-action problems nor the procedural inertia inherent in the legislative process. The majority’s methodology thus all but guarantees the continuing aggrandizement of the Executive Branch."

​(Quoting Scalia, J., concurring in the judgment, slip p. 26.)​