The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some progressive activists and commentators are understandably frustrated that the Senate refused to consider President Obama's nomination of Merrick Garland to the Supreme Court. Some sued (making borderline frivolous claims). Others argued that Obama could simply appoint Garland without Senate consent. The problem, in both cases, is that the Senate has no constitutional obligation to consider a president's nominees. While prior Senates largely used this power to withhold consent for lower court or executive branch nominees (leaving some judicial nominees in limbo even longer than Garland), there is no constitutional reason to treat a Supreme Court nomination differently.
Since the election, some are advancing a new strategy to place Garland on the high court: a recess appointment. This idea was floated by David Dayen in New Republic in November and endorsed this week in New York magazine by Ed Kilgore. The problem with this idea, however, is that it is clearly precluded by Supreme Court precedent and, even were this not the case, would be entirely fruitless (although not for the reasons Dayen and Kilgore suggest).
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Dayen and Kilgore suggest that Obama could recess-appoint Garland to the Supreme Court (and other nominees to lower courts) on Jan. 3 during the short recess between the 114th and 115th Congresses. This intersession recess may be infinitesimally short—perhaps no longer than the time between two swings of a gavel—but (the theory goes) must exist as there must be some amount of time between the end of one session and the start of the next.
The idea here is not new. President Theodore Roosevelt used this intersession recess to make numerous recess appointments in 1903. The practice was never repeated, however, and the theory upon which TR's actions were based were largely disavowed by subsequent administrations. But that's hardly the only problem with an intersession recess appointment.
The real problem with trying to make such an intersession recess appointment is that the Supreme Court has held that such an appointment would be unconstitutional in Noel Canning v. NLRB. Dayen and Kilgore purport to address Noel Canning – claiming it does not apply since the case concerned only intrasession recess appointments—but they ignore what Justice Breyer's opinion for the court actually says. As Seth Barrett Tillman points out, Noel Canning clearly precludes such an appointment. From Justice Breyer's opinion:
we conclude that the phrase "the recess" applies to both intra-session and inter-session recesses. If a Senate recess is so short [i.e., less than 3 days] that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.
If a three-day recess is too short, a three-second recess would certainly be as well and, contrary to Dayen's and Kilgore's suggestion, Justice Breyer's opinion makes no distinction between intrasession and intersession recesses. All told, every justice on the court embraced an opinion rejecting the idea that such an intersession recess appointment would be constitutional.
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The problems with the Dayen and Kilgore gambit do not end there, however. Such an appointment, even if attempted, would be futile, but not for the reasons they suggest. Kilgore says a Garland recess appointment could be nixed only by a Senate vote to reject Garland's nomination—giving him the vote Democrats have called for—or through "extensive litigation." He's wrong on both counts. A vote against Garland's confirmation would not undo a recess appointment, and litigation, "extensive" or otherwise, would not be necessary to remove Garland from the bench.
Dayen rightly notes that it would be difficult to quickly arrange a lawsuit to challenge the constitutionality of Garland's appointment (though such suits have been brought before). Yet such a suit would not be required. All that the Senate would need to do is end its next session by adjourning sine die and Garland's term would end. This is because, under the Constitution's Recess Appointments Clause, such appointments terminate at the end of the next Senate session. Adjourning sine die would require the cooperation of the House and a president's signature, but that would be no obstacle come Jan. 20. In other words, Congress could terminate any recess appointment made by Obama in less than three weeks.
None of this is likely to happen, in part because Barack Obama isn't built that way, and in part because Democrats might fear the gesture would distract attention from the terrible things the new Trump administration and its congressional allies are trying to do to the country on many fronts.
No. The real reason this is unlikely to happen is that it would be unlawful and unavailing—and there is virtually no chance that someone of Garland's character would participate in such a gambit.
Update: I should have added that another reason this won't happen is that recess-appointing Garland to the Supreme Court would create a vacancy on the U.S. Court of Appeals for the D.C. Circuit that could then be filled by President Trump.