oral argument in a Supreme Court case involving appointments to the National Labor Relations Board (NLRB), several justices questioned the constitutionality of this shift, indicating that the Court is inclined to impose limits on the president's ability to dodge the "advice and consent" requirement.The Constitution's Recess Appointments Clause, adopted at a time when gathering scattered legislators in the capital for a special session posed serious practical difficulties, was intended to let the president fill vacancies when the Senate was not available to provide its "advice and consent." During the last century, the clause evolved into a pretext for making appointments the Senate refused to approve. Yesterday, during
Justice Elena Kagan suggested that the original rationale for recess appointments is obsolete in an age when the Senate can be reconvened as quickly as its members can fly back to Washington:
Presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the president thinks ought to be approved....
This is not the horse-and-buggy era anymore....There's no such thing truly as congressional absence anymore. And that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.
Justice Samuel Alito took up the same theme, telling Solicitor General Donald Verrilli:
You are making a very, very aggressive argument in favor of executive power now, and it has nothing whatsoever to do with whether the Senate is in session or not. You're just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the president must be able to fill those positions.
Verrilli agreed, saying, "I think the recess power may now act as a safety valve given that intransigence." The problem with that position, as Chief Justice John Roberts pointed out, is that the Senate has "an absolute right not to confirm nominees that the president submits." Justice Stephen Breyer also seemed troubled by the idea that the Recess Appointments Clause is a remedy for congressional "intransigence," saying, "I can't find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the President....Where is it in the history of this clause, in its origination, that it has as a purpose to allow the President to try to overcome political disagreement?"
Miguel Estrada, arguing on behalf of Senate Minority Leader Mitch McConnell (R-Ky.), said such use of recess appointments is illegitimate, since "there is no power in the Constitution to use the Recess Appointments Clause to overcome the opposition of the Senate to the president's nominees." Noel Francisco, the lawyer for the company challenging the NLRB appointments, warned that "the government's position...would eviscerate [the requirement of Senate approval], creating a unilateral appointment power available for every vacancy at virtually any time, with advice and consent to be used only when convenient to the president."
That is not much of an overstatement. The Constitution says "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." The Obama administration maintains that "the recess" can occur not just between sessions of Congress but during any break when the Senate is not conducting business, that the president can unilaterally determine when such a break has occurred, and that the vacancy need not arise during the break.
Regarding that last point, Verrilli argued that a vacancy can be said to "happen" during a recess if it continues then, even though it arose while the Senate was in session. Justice Antonin Scalia questioned that reading:
Death is an enduring state. But if someone dies in 1941, you don't say he died in 1945. He's still dead.
Justice Anthony Kennedy noted that the original version of the Constitution, which gave state legislators the power to pick senators, included a provision similar to the Recess Appointments Clause: "If Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies." That provision was understood to let governors fill vacancies only if they arose between legislative sessions—a fact that "favors your position," he told Francisco.
Justice Clarence Thomas, as usual, did not speak during the oral argument. But given his originalist inclinations, it seems safe to assume he is not receptive to the idea that the Recess Appointments Clause can legitimately serve "a new purpose that nobody ever intended it to have," as Kagan put it. Given the skepticism expressed by Roberts, Scalia, Alito, and Kennedy, that's at least five votes against the administration. Kagan and Breyer also seemed troubled by some of the government's arguments and might end up joining an opinion that rejects at least part of Obama's position. The idea that the Senate does not get to decide when it's in recess seems especially vulnerable.
Although in this case it's a Democratic president using recess appointments as a way to avoid an inconvenient constitutional requirement, that sort of abuse has a bipartisan pedigree, as Kagan noted. In fact, Republicans (especially George W. Bush) have used this particular evasive maneuver more often than Democrats. "We have different political parties taking absolutely opposite sides," Breyer observed, "depending on the political party of the President." This case is therefore an excellent opportunity for the justices to show they are committed to upholding the Constitution without regard to partisan politics.