On the D.C. Circuit Reading the Recess Appointment Power Out of the Constitution

I have a more extensive analysis up at the Prospect. In theory, courts should play a role in facilitating the operation of a democratic system; here, they’re going out of their way to make government substantially more dysfunctional. Of course, this is the point:

It’s not a coincidence that three reactionary Republican appointees on the D.C. Circuit reached this strained and illogical result. As Adam Serwer of Mother Jones and Brad Plumer of The Washington Post explain in detail, the implications of this decision are potentially far-reaching, starting with retroactively invalidating years of NLRB decisions and effectively destroying the new Consumer Financial Protection Bureau. For Republicans like Sentelle, of course, this is a feature not a bug—an utterly dysfunctional government that is unable to protect workers or consumers suits the contemporary Republican Party just fine. If they wish to realize this vision, however, they should at least do it by winning elections, not through judicial opinions that casually sweep away more than a century of established practice with arguments that read like a cruel parody of originalism.

“The Constitution,” notes the legal scholar Akhil Amar, “is a practical document, it’s designed to work.” The Constitution of contemporary Republicans like Sentelle, conversely, is designed not to work. Far from addressing the increasing cycles of dysfunction that increasingly prevents administrations of both parties from being properly staffed, the D.C. Circuit’s decision Friday actually gives the minority faction of one house of Congress greater power to mindlessly throw monkey wrenches into the proper functioning of government, while taking from the president the tool the framers had the foresight to give him in response.

111 comments on this post.
  1. Derelict:

    This decision will have full force until the next Republican president. Then it will be instantly forgotten or simply reversed under the well-accepted doctrine of “inconvenient for Republicans.”

  2. Rarely Posts:

    It’s hard to believe that Sentelle did not hold off on releasing the decision until Reid announced that the Senate would not engage in real filibuster reform at the state of the term. If this decision had been released a week earlier, I suspect Reid would have had 51 votes for serious filibuster reform, at least with respect to executive branch appointees, because the 55 democratic Senators would have been aware that no recess appointments would be available. Instead, Reid killed real reform, and very conveniently, this decision came out just afterwards.

  3. David Hunt:

    I can’t think of any reason that the Obama Administration would let this decision go unchallenged. I hope that even the conservative hacks on SCOTUS could find their way to uphold this ruling. For example, I believe I’ve read that Roberts has written about the problem of the increasing number of vacancies in the Federal courts. This obstructionism seems to bother him. He’s shown in the ACA ruling that he’s apparently unwilling to go to the most absurd levels in his rulings to push the Republican agenda. We can live in hope.

  4. David Hunt:

    Ack/ That should read that “I hope that even the conservative hacks on SCOTUS could NOT find their way to uphold this ruling.”

  5. David Hunt:

    I’m not so sure. The Senate is full of primadonnas. This gives a Senator more power to hold up everything to make the President kiss their ass. I think there are enough Democratic Senators that are just the right kind of asshole to hold up filibuster reform.

  6. sibusisodan:

    …President Obama is required to conform to the norms that prevailed during the Adams administration, while Congress is permitted to use a very 21st-century understanding of its “advise and consent” power…

    Thanks – an excellent summation of that PoV. Hit the nail on the head.

  7. rea:

    The business in the opinion about recess appointments only being available for vacencies arising during the recess is contrary to attorney general opinions and presidential practice dating back to 1823. This bizarre willingness to go back to the language of the Constitution and start over on a clean slate, as if nothing had happened since 1787 that has any precedential value, is one of the msot annoying aspects of contemporary rightwing jurispurdence.

  8. c u n d gulag:

    Yes, but it’s for a good cause!

    To stop that KenyanSocialistFascistCommunistIslamistAtheistMuslim Usurper, from spreading Sharia Law through his recess appointments, in place of our Constitution, written in Christ’s own hand-writing.

  9. mds:

    Repeatedly bringing up “precedent” and “facts” as refutations of transparently phony originalism** as a cover for a purely results-driven decision? What’s next, pointing out Judge Sentelle’s long, well-established track record as a reactionary extremist? I expected better from an academic, rea.

    **Yes, I know, this is redundant.

  10. Joe:

    Prof. Adler responded to your last post and it would have been interesting to get a response. I find him a tool sometimes, so I understand (if you even saw it) that you skipped doing so.

  11. rea:

    I’m not exactly an academic, mds, unless helping grandkids with their homework counts (god, I hate fractions!)

    Oh, yes–and Judge Sentelle’s place in history before this was that gave us Ken Starr, Special Prosecutor.

  12. DanMulligan:

    I recently had the pleasure of having the 9th Circuit explain to me that a deed of trust in California was not an encumbrance on property and that the Civil Code clearly had not been drafted to cover the only form of security interest actually used in the state. To rule otherwise, of course, would have been very costly to large banks.

    If you think judges are, in any way, not political beasts set up to support establishment interests then I suggest you try litigation for a while.

  13. mds:

    I’m not exactly an academic, mds

    Oh, whoops, too subtle. I was simply echoing Professor Adler’s substanceless assholish remark from the earlier comment thread.

  14. Linnaeus:

    I’m not exactly an academic…

    But you did stay at a Holiday Inn Express?

  15. SP:

    If you want to use tortured grammatical analysis, they clearly the failure to promptly consider Presidential nominees is unconstitutional as well- the clause says “advise and consent” which in order to be true means that both actions must be taken (it’s not advise OR consent)- therefore the failure to hold votes is a failure to fulfill their constitutional duty.
    There, now can I be a circuit court judge? (Obviously not, since there will never be any confirmed ever again.)

  16. Incontinentia Buttocks:

    A large chunk of the Senate Democratic caucus seems pretty committed to not being able to govern.

  17. David Nieporent:

    The flaw in your rant is that it’s based on the mistaken premise that the recess appointment power was supposed to be a “check” on the Senate. It wasn’t. It was a power meant for dealing with exigencies when the Senate actually wasn’t in session, given travel times in 1789, not a way to get around the Senate if it didn’t do what the president wanted.

    Once again: the administration’s position has nothing to do with “filibusters” or “obstructionism.” The administration’s position is that it can declare the Senate to be in recess when the Senate itself says that it isn’t, and then unilaterally appoint people without bothering to even wait for the Senate to consider them.

    In response, you essentially argue that that presidents think they should have as much power as possible, and (b) anyone who obstructs the president is partisan so we should ignore them.

  18. rea:

    Was that a response? I thought he just came into the thread and played the Ted Kennedy card, without any substantive argument.

  19. rea:

    The administration’s position is that it can declare the Senate to be in recess when the Senate itself says that it isn’t

    Tha administration’s position is that it can look beyond form to substnace, and when the Senate declares it is not in session to conduct business, treat that as a recess.

  20. Cody:

    If you accomplish something in government, then you’ll get blamed for it.

    Best to just not do anything and maintain the status quo of nice jobs and perks.

  21. Cody:

    Where in the Constitution does it declare the Senate can make Pro Forma sessions?

    If it’s not in the Constitution, then they must not be able to exist. And therefore the Senate could not be in session.

  22. Joe:

    Well, as you can see, I didn’t find him that convincing, but it is true that Marty Lederman challenged Pryor using a form of the argument.

  23. Anonymous:

    The Senate can set its own rules.

  24. rea:

    The Senate can set its own rules.

    If they declare that the Senate is in session as long as a kumquat is present in DC, that would be constitutional, in your view, I take it.

  25. Hogan:

    Which rule of the Senate says it’s still in session even when it’s not doing any business?

  26. David Nieporent:

    As the opinion notes in passing, the Senate passed an extension of the payroll tax cut during one of those pro-forma sessions. The fact that the Senate said it didn’t intend to conduct business does not mean it was unavailable to conduct business. That’s the substance.

    Note that Obama could have adjourned Congress if he had wanted (Article I, Section 3) and then this would have at least been a traditional intrasession recess appointment. Instead he decided for the first time to argue that the executive branch could determine whether the legislative branch was in session.

  27. Manta:

    And if you can govern, people will expect you to deliver on your promises: and that would piss off quite a few rich donors.

  28. wengler:

    I’m not going to argue in favor of recess appointments, but the Senate doesn’t get to block appointees perpetually without accepting or rejecting their nomination. This is a problem with the Constitution that has traditionally been solved through recess appointments.

    It will all end, of course, with a President unilaterally appointing people using a security excuse. It won’t be a great thing, but every sign is pointing to greater centralized power in the Executive. The Republicans seem to think it’s their mission to make a Dictator-President when they are in the position and use the power of the Congress to block those powers(and do nothing else) when they aren’t.

  29. Mark D'ski:

    What happened to the “unitary executive”?

  30. L2P:

    How is that possible? The mrta defines deeds of trust as security interests. Unless there was something screwy like doubt about the underlying debt or the timing, that’s literally senseless.

  31. L2P:

    That’s insanity. The senate is always “available” to do business. They just need to call a session and get a quorum. They can set their own rules, for the love of gawd. They could ratify the “session” afterwards if they wanted to.

    Sweet mother of procedure, they could just set a rule that they were “retroactively in session” whenever the president tried to make a recess appointment. There’s no limit to the “availability” of the senate.

    Unless the actual,substance is reviewed (were senators there? Did they actually do any seating?) the recess power could literally never exist, without the senate needing to actually be avoid a recess.

  32. Crackity Jones:

    The enduring legacy of Pretend President Bush and Chancellor Cheney.

  33. Mark D'ski:

    more fool me, I thought that was what the 2008 election was about

  34. sibusisodan:

    As the opinion notes in passing…

    Second time you’ve tried to pretend this is true.

    The opinion noted – as did the Senate – that during the pro forma sessions the Senate would not be conducting any business.

    Explicitly, and unanimously.

    The opinion also noted – as did the Senate – that the Senate changed their minds, also by unanimous consent, allowing them to have an extra-special session which was not pro forma, during which payroll tax extn was passed.

    What you’d like to be the case: the Senate having pro forma sessions which differed in no way from other sessions, and during which, at any point, they could leap – leap - from their torpor; legislate, advise or consent as required.

    What actually happened: the Senate said that they wouldn’t be available to do any business until they said any different, but carried on clocking in and out in a meaningless manner.

    The Senate declared their intention not to be available to conduct business until such time as they changed their minds.

    They declared their unavailability for advice & consent pretty straightforwardly. And were called on it.

    Your argument is functionally no different from saying that the President may not appoint people even when the Senate is in recess, in case the Senate cuts short their recess and comes back into session early.

  35. rea:

    The business about the payroll tax cut proves Obama’s case that the Senate was in recess–do a little googling and you’ll find Republican senators saying that the senate couldn’t address the payroll tax cut due to its recess. After some further politicking, they cut their planned recess short to come back and pass the bill.

  36. sibusisodan:

    Exactly. The way the payroll tax thingy happened was by the Senate changing their minds about what was permissible during the pro forma sessions.

    If they were already available to perform all the functions of the Senate, such a decision would not have been required. It would have been all like ‘oh, you want to pass some legislation? Sure, come on over whenever, we’re quorate.’

  37. Scott Lemieux:

    I missed that — will check it out.

  38. cpinva:

    that would be a question for the senate to respond to, since, indeed, they are the only ones authorized by the constitution to make their own rules.

    “Which rule of the Senate says it’s still in session even when it’s not doing any business?”

    the constitution doesn’t require that the rules make sense. damn those god-like founding fathers! silly them, they probably expected that only white, landowning men of goodwill, would ever be elected to the senate.

    my guess, the DC Circuit (and every other court), would say opining on it is out of their purview.

    “If they declare that the Senate is in session as long as a kumquat is present in DC, that would be constitutional, in your view, I take it.”

    it could be a really smart kumquat.

  39. Scott Lemieux:

    The flaw in your rant is that it’s based on the mistaken premise that the recess appointment power was supposed to be a “check” on the Senate. It wasn’t.

    [Cite omitted. Also, by assuming that originalism in this context isn't worthless, assumes facts not in evidence.]

    the administration’s position has nothing to do with “filibusters” or “obstructionism.” The administration’s position is that it can declare the Senate to be in recess when the Senate itself says that it isn’t

    If the opinion was limited to recess appointments during phony “pro forma” sessions, we could have this conversation. Since the opinion applies to all intrasession recess appointments — including ones when the Senate is not even formally claiming to be in session — it’s beside the point. In the future, reading either the opinion or the linked article before commenting would be useful.

  40. cpinva:

    ordinarily, i would argue that the fear of being voted out of office, would keep the senate (and the house) from continually doing really, really stupid things. however, that doesn’t seem to be as operative as it used to be. perhaps, the constituents of these people want them to continue doing stupid things, and re-elect them when they do. just a thought.

  41. Joshua:

    I am not a lawyer, but even from an “originalist” POV, I find it very difficult to believe that the Framers intended for a minority faction (as small as 1 person) to keep a duly elected President from appointing people to fill duly enacted government posts.

    Not just difficult, but sheer madness.

  42. Speak Truth:

    Oh for pity’s sake….

    GET A JOB ALREADY You’ve been sitting around doing this all day for far, far too long.

    I just might have to hire you myself just to get you off the street. What do you know about corporate taxation?

  43. Malaclypse:

    I love the smell of troll bile in the morning. You know, one time we had a hill bombed, for 12 hours. When it was all over, I walked up. We didn’t find one of ‘em, not one stinkin’ troll body. The smell, you know that gasoline smell, the whole hill. Smelled like [sniffing, pondering] victory. Someday this war’s gonna end…

  44. sibusisodan:

    it could be a really smart kumquat.

    Obligatory response: wouldn’t that stand out even more?

  45. Uncle Kvetch:

    Little-known fact: in a pinch, troll bile can be used as a substitute for buttermilk in most pancake recipes.

  46. Mark Field:

    by assuming that originalism in this context isn’t worthless

    Your sentence is much more accurate now.

  47. joe from Lowell:

    The administration’s position is that it can declare the Senate to be in recess when the Senate itself says that it isn’t, and then unilaterally appoint people without bothering to even wait for the Senate to consider them.

    Oh, please. Do you have even the slightest familiarity with how the Senate has been (not) handling nominees over the past four years?

    This President has demonstrate a God-like patience with the Senate when it comes to nominees to both the federal courts and executive branch positions. They can’t even get votes on nominees that even the Republicans acknowledge would pass in a heartbeat. You are so utterly and completely full of crap in making this accusation.

  48. Murc:

    since 2007, the Senate has attempted to nullify the president’s power to appoint government officials during a recess by holding pro forma sessions that do not conduct any business but are solely started and ended to obstruct the president’s constitutional powers. The Obama administration argues convincingly that these fake sessions do not constitute a meaningful end to a recess.

    I’m curious. You don’t think the Senate, especially the Senate Majority (which, despite being incredibly neutered at times, does control the agenda) has the power to decide when it is and is not in session?

    It seems like it works both ways. If the Senate can decide its own internal rules (which it can; there’s no question that, say, the filibuster is Constitutional) it seems like it has the power to declare when it is and isn’t in recess.

    It’s true they don’t conduct meaningful business during the pro forma sessions, but you seem to be making a highly abstract argument there; would you argue that the Senate isn’t actually in session if everybody were physically present in the building, but were all just chilling in their offices and occasionally taking to the floor to pass resolutions declaring that other countries suck? That’s not meaningful business either.

    His first argument is textual, arguing that the use of the phrase “the recess” in Article II, Section II means that the framers could not have meant a temporary recess. This is a plausible reading of the text,

    I’m pretty textual-curious, but I would actually argue that it is not. The Senate can control it’s own recess; that’s baked in. It’s theoretically capable of meeting almost never, like the Texas lege. Reading the text in a way that only the adjournment between one formal term of Congress and the next is a recess is deeply implausible.

    As Adam Serwer of Mother Jones and Brad Plumer of The Washington Post explain in detail, the implications of this decision are potentially far-reaching, starting with retroactively invalidating years of NLRB decisions

    Can this happen? I mean… even if Sentelle is upheld, the stuff that happened under the previous understanding of the recess appointment power is still valid, isn’t it?

    Like when they changed how congressional districts are drawn. That didn’t make previous elections invalid.

  49. David Hunt:

    You obviously don’t have the GOP to English Dictionary, 2001-2008 Edition. It clearly defines Unitary Executive as “Republicans get to do whatever they want.”

    Of course that’s what most things it translates to English say. However, there are some things that translate to “Democrats are always wrong” instead.

  50. Murc:

    but the Senate doesn’t get to block appointees perpetually without accepting or rejecting their nomination.

    I honestly don’t see why not.

    The Senate has the power to serially reject nominees. Refusing to vote on them is a form of doing that, and it’s well within their power to do so.

    It’s no way to govern, but it doesn’t mean they don’t get to do it.

  51. David Hunt:

    It’s clear that that would only be constitutional in the fifth month of the year: Kumquat May.

  52. joe from Lowell:

    The houses of Congress can set extremely dumb rules if they want, yes.

  53. Scott Lemieux:

    Right. And by the same token, the president should be able to respond by making recess appointments, and the Senate should not be able to nullify this power by just declaring itself to always being in session even when it’s not doing anything.

  54. DrDick:

    So you agree that Bush using this process to appoint John Bolton ambassador to the UN was unconstitutional? Odd how this was never a problem for you or the rightwing hacks in the federal judiciary until a Democrat was president.

  55. elboku:

    If you accept the reasoning of the court, the ruling potentially makes past appointments void/voidable and the decisions/rulings promulgated by said appointees possible null and void. I realize there is a doctrine out there about people acting with the good faith belief that they were had the power to act but this ruling seems to say these appointments never had the ‘grace’ of being constitutional. That is a whole lot of can o’ worms opening to say the least. This may be the giant step through the tiny rabbit hole or can we really believe six impossible things before breakfast?

  56. joe from Lowell:

    Hep-hep!

  57. Murc:

    the Senate should not be able to nullify this power by just declaring itself to always being in session even when it’s not doing anything.

    It shouldn’t be able to, no.

    But aside from ‘it makes the country impossible to govern’ I don’t think there’s an actual legal argument that they can’t do this.

    Even supposing we accept the argument that the Senate declaring no business will be conducted is an equivalent to being in recess (and that is a pretty strong argument) they can simply get around that by merely declaring when they are and are not in session and deciding when business will be conducted on a more informal basis.

  58. Bill Murray:

    Article 2 Section 3 Clause 3

    If the two Houses cannot agree on a date for adjournment, the President may adjourn both Houses to such a time as befits the circumstances.

    So if no date of adjournment is agreed, the Pres can adjourn both houses of Congress

  59. wengler:

    It’s a form of invalidating election results through parliamentary games. It’s the sort of thing that really discredits the whole system.

    This sort of obstruction isn’t new, but over the long-term without any sort of reform, the Executive will have to ignore the Constitutional advise and consent provision in order to perform his or her Constitutional role. It’s the same thing as the debt ceiling. The Executive will inevitably assume more power because the Legislature is acting irresponsibly.

  60. Paulk:

    And doesn’t the fact that they had to call the Senate back into session in order to conduct this business basically end any debate that the Senate was otherwise in session when they, in fact, were not?

  61. Bill Murray:

    the President does have the constitutional power to declare both houses in recess if they can’t agree on a recess date. I guess the key is the Senate wanting to recess but the House not wanting to do so.

    Now no President has ever done this before, but we aren’t exactly in normal times.

  62. Scott Lemieux:

    But aside from ‘it makes the country impossible to govern’ I don’t think there’s an actual legal argument that they can’t do this.

    Sure there is — the president has a recess appointment power, and it means something. There’s no reason pro forma sessions have to be treated as real sessions.

  63. Murc:

    So who settles the dispute if the Senate claims it is in session and the President claims otherwise?

    I mean, usually we would just take the Senate’s word.

  64. Gandalf:

    Dawn take you and be stone to you!

  65. Malaclypse:

    By the way, Jennie dearest – if you really were a small business owner like you pretend, or even a medium-to-large business owner, you would be outsourcing your corporate tax work. Doing it in-house is stunningly foolish, both in terms of cost and risk management.

    Please try and develop your pretend identities better.

  66. Scott Lemieux:

    But there’s no reason to take the Senate’s word when it comes to a shared power (than happens to be primarily presidential.) This is the same kind of sterile formalism that gave us decades of “well, the county swears it doesn’t discriminate in jury selection, so we have to take their word even if it’s been 50 years since an African-American served on a jury” from the Supreme Court.

  67. John:

    Scott – not to belabor this, since I agree with you on the substance, but surely you have several times brought originalism into this yourself by contending that “the framers had the foresight” to create the recess appointments power to respond to Congress’s “power to mindlessly throw monkey wrenches into the proper functioning of government.”

    I don’t see how, in the context of you making that argument, you can then take people to task for “originalism” when they argue that this is not why the framers created the recess appointments power.

  68. John:

    Which isn’t to say I agree with Nieporent; the decision was terrible. I just don’t see what purpose is served by talking about the framers creating the recess appointments power to limit Senate obstructionism.

  69. John:

    Obama didn’t do that, though, did he?

  70. John:

    I think that’s the key here. Sure, the Senate can declare itself to be in session whenever it wants, but it’s unclear why the president has to accept this.

    I think it’s also really important that the DC Circuit went way, way beyond the question of whether pro forma sessions are acceptable by saying, in contrast to more than a century of precedent, that intrasession recesses don’t count and that the vacancy has to arise during the recess.

    It would be one thing if they had ruled that the pro forma sessions count, and that these particular appointments were thus invalid. It is quite another to eliminate the recess appointments power entirely.

  71. Murc:

    But there’s no reason to take the Senate’s word when it comes to a shared power (than happens to be primarily presidential.)

    … the determination of whether or not the Senate is in session is a primarily Presidential power? Wha?

  72. Richard:

    David, the problem with your argument is that the court’s decision provides a judicial check on the power of the President but provides no judicial check on the power of Congress. I understand your point that the President’s argument allows him to make any appointment he wants just by declaring Congress to be in recess but the opinion in this case allows Congress to never hold a hearing on an appointment and then get around the recess appointment clause by declaring themselves to be in session except for the sixty seconds or so when one session of Congress ends and when the next session starts. The court’s decision elevates form over substance.

    It may be that for the pro forma session where an extension of the payroll was passed, a recess appointment was unwarranted. But that certainly wasn’t the case for every one of these sessions and there certainly was no need for a broad opinion that ignored 150 years of presidential and congressional practices. Congress can’t be allowed to get around the constitutional grant to the President of recess appointments by claiming that it was available to conduct business even though no business was conducted. If it is allowed to do that, there would never be a recess appointment and the constitional provision would be meaningless.

    Now it may be that the courts shouldn’t get involved in deciding that a session is a sham when no business is conducted if Congress says is available for business. In that case, the appropriate decision is to hold that it also wont decide whether the president’s invocation of the recess appointment power is proper or not. Leave the Congress and the President to fight it out. If Congress doesn’t like what the President did, it can impeach or it can withold funding related to the appointments. But I believe it is highly inappropriate for the court to ignore history and curb the president while ignoring the reality of what congress has done.

  73. pedant:

    ” . . . they’re going out of there way” . . .

    Tsk.

  74. dan:

    I don’t agree with the opinion, but my views on the merits aren’t what annoy me about it. Two things are wrong with the opinion, one technical that I’ll skip, and the other is this: I don’t believe it. That is, while I believe that some people might believe that the Constitution should be interpreted so as to restrict presidential authority so strictly, I don’t believe that the authors of the opinion do. I can’t imagine that they would read, say, the Part about the President being Commander in Chief — you know, the paragraph that comes immediately before the stuff about appointments — in the same crimped, crabbed manner.

  75. Joe:

    They wouldn’t since it is all so clear (just ask Mr. Yoo) that the Framers intended the president to have royal-like powers.

    The conservative libertarian brigade also often somehow becomes less libertarian when that sort of thing is at issue.

  76. DrDick:

    On the other hand, he really is dumb enough that he would do that if he were an actual business man.

  77. Scott Lemieux:

    That’s not an “originalist” argument per se; it’s just noting what’s in the text of the Constitution. I don’t care how the framers actually thought it would work in 1789.

  78. Scott Lemieux:

    … the determination of whether or not the Senate is in session is a primarily Presidential power? Wha?

    The determination of the scope of the president’s appointment power belongs entirely to (a minority faction of) the Senate? Wha?

  79. DanMulligan:

    And yet, they did.

  80. Bill Murray:

    This was meant more at DN’s case that the President can’t declare the Senate to be in recess. Under some circumstances the President can. A formal request from one of the branches would probably be useful, but is not clearly required.

    In any case, there is no formal method, so I think it could be argued he did this although without a formal announcement of using this specific power. In any case the ruling that it’s only for openings occurring during the recess makes using this for appointments moot

  81. Curmudgeon:

    Washington is committed to the bipartisan consensus that the United States must have a Republican government.

  82. Colin Day:

    Waffles, nice Belgian waffles. Smothered in strawberries and whipped cream, of course.

  83. Michael:

    The definition of “recess” (and “happening”, for that matter) are both questions of Constitutional interpretation. All 3 branches of gov’t regularly engage in interpreting the Constitution. The courts typically have the last word on that, of course, but now we can discuss why we think the court got it so wrong, i.e. that we think the Pres, not Congress, got the meaning of “recess” right.

    Saying “can’t Congress decide when it is and is not in session” is assuming a formalistic approach that then decides the issue; it begs the question. We don’t have to accept that type of formalism, and the Court often finds the Constitution to be written far more functionally then formally (see, e.g., Roberts’ tax analysis in the healthcare decision). If we start from a *functional* approach, then its totally logical to hold that the Senate can say whatever it wants, but if its not actually in session from a practical matter, then FOR THE PURPOSES of the recess power, its not in session.

  84. Colin Day:

    Article II, Section 3 allows the President to compel Congress to convene, but it does not permit the President to force it to recess. I suspect the Time of Adjournment is when Congress is to meet, not separate.

  85. Murc:

    The determination of the scope of the president’s appointment power belongs entirely to (a minority faction of) the Senate?

    My understanding is that, while many things can be gummed up by the minority, it is in fact the Senate Majority that determines the agenda and also determines whether or not the Senate is in session or not.

    But to break it down to nuts and bolts: if the Senate declares itself to be in session, and the President refuses to acknowledge that, does that go to the courts? And what standard do the courts use?

    Because it seems to me the most likely way that shakes out is the courts establish some guidelines for what it takes for the Senate to be considered in session, and the Senate simply takes care to meet those guidelines if they ever care to stop the President from staffing the government.

  86. Colin Day:

    I suspect that the Time of Adjournment is when Congress is to reconvene, not when it stops.

  87. Scott Lemieux:

    Because it seems to me the most likely way that shakes out is the courts establish some guidelines for what it takes for the Senate to be considered in session, and the Senate simply takes care to meet those guidelines if they ever care to stop the President from staffing the government.

    Or, conversely, they could abandon your approach of evaluating clauses of the Constitution in formalistic isolation, realize that the Constitution creates an institutional structure rather than being a serious of independent ipse dixits, and correctly see that pro forma sessions intended solely to frustrate the president’s appointment power are different than ordinary sessions of Congress.

  88. Murc:

    If we start from a *functional* approach, then its totally logical to hold that the Senate can say whatever it wants, but if its not actually in session from a practical matter, then FOR THE PURPOSES of the recess power, its not in session.

    I’m not saying this is wrong, but wouldn’t this also require the establishment of firm guidelines determining what does and does not count as being in session?

    I would have a problem with, for example, ‘whether the Senate is not in session is unilaterally determined by the President.’

  89. Colin Day:

    Doesn’t the House get to veto a Senate recess. See the last paragraph of Article I, Section 5. Can the Senate recess without adjourning for more than three days?

  90. Michael:

    Of course, I would have a problem with that too. But the court could take an ad hoc approach–without crafting a broad rule, simply decide that, based on the facts before it, for these nominees, the Senate was not in session, and simply leave it at that. THAT’s the judicially minimalist — and therefore, IMO, conservative — way to tackle the case. What they did wasn’t conservative, it was profoundly reactionary.

  91. Murc:

    and correctly see that pro forma sessions intended solely to frustrate the president’s appointment power are different than ordinary sessions of Congress.

    So then we’re in the position of an endless series of court cases in which the Senate argues with the Executive over what the intent behind their remaining in session is?

    I mean, good lord, Scott. You’re seriously arguing that the Senate both shouldn’t be allowed to determine when it is and isn’t in session, AND that there shouldn’t be some objective standard for them to meet so as to remove all doubt, but rather, the President and/or the courts get to decide for them what was in their HEARTS for any given session?

    Tell me if I’ve gotten any of that wrong.

    Like it or not, the Senate has to approve nominees to staff various government positions. It is within their power to tell the President ‘no, fuck YOU’ and to simply remain in session all the time if they choose to not staff the government and to not allow the President to do so in their stead. The only clear way I see to changing that is to change the Constitution or to get Senators who return to prior governing norms.

  92. Murc:

    But the court could take an ad hoc approach–without crafting a broad rule, simply decide that, based on the facts before it, for these nominees, the Senate was not in session, and simply leave it at that.

    They could, I suppose, but wouldn’t that create its own precedents? Eventually a set of rules would be established because the courts would create a whole set of precedents.

  93. L.M.:

    But in our coming Libertarian utopia, we’ll have no need for the regulatory state: private actors can correct market failures through common law torts, just like they did in 1787.

    This explains why Republicans lavish so many resources on the federal courts, and bitterly oppose tort reform.

  94. Pestilence:

    Kvetchie old boy, sorry,cant make that breakfast – just remembered I had an urgent root canal. In Panama.

  95. Paulk:

    Like it or not, the Senate has to approve nominees to staff various government positions. It is within their power to tell the President ‘no, fuck YOU’ and to simply remain in session all the time if they choose to not staff the government and to not allow the President to do so in their stead. The only clear way I see to changing that is to change the Constitution or to get Senators who return to prior governing norms.

    The reason this is nonsensical is that the Recess Appointment power is designed to enable the President to keep the government offices functioning when Congress is not able to “advise and consent.” This deference to the priority of functioning government makes no sense in conjunction with an argument that the Senate could simply refuse to staff these offices at all. If there is a check on this power to keep the government running (and to prevent the President from abusing this privilege, it’s that appointments made in this manner are temporary.

    The argument that Congress is perfectly within its right to refuse to staff these offices simply runs contrary to the whole purpose of the power in the first place. The deference in the Constitution is to a functioning government.

  96. Murc:

    The reason this is nonsensical is that the Recess Appointment power is designed to enable the President to keep the government offices functioning when Congress is not able to “advise and consent.”

    There’s a difference between ‘not able’ and ‘not willing’.

    Refusing to vote on a nominee is functionally equivalent to serially rejecting them, which I think we’d all agree is within the Senate’s power, yes?

  97. Scott Lemieux:

    There’s a difference between ‘not able’ and ‘not willing’.

    Why? You’re reading into the Constitution something that just isn’t there, and your reading has the additional disadvantage of being contrary to the structure of the Constitution. Appointments are a presidential power, lodged in Article II. The recess appointment power is a check that allows the government to function. (And, by the way, the use of that power carries costs, especially with judicial appointments, and presidents have incentives not to use it if it’s not necessary.) To choose — as you and the wingnuts on the D.C. Circuit would do — to read the advise and consent clause so broadly as to permit nullification while reading the recess appointments clause so narrowly as to frustrate its purpose is just nonsensical.

    Refusing to vote on a nominee is functionally equivalent to serially rejecting them, which I think we’d all agree is within the Senate’s power, yes?

    It is! Just as it is within the power of the president to make recess appointments to allow the government to function.

  98. Murc:

    There’s a difference between ‘not able’ and ‘not willing’.

    Why?

    … because words have meaning?

    Appointments are a presidential power, lodged in Article II.

    They’re a shared power. Nobody gets appointed unless the Senate says okay, or unless the Senate says ‘fuck it, we out’ and goes into recess.

    To choose — as you and the wingnuts on the D.C. Circuit would do

    I have in no way, shape or form, in any of my comments on this thread, endorsed the ruling of the D.C. Circuit. I resent the implication, frankly.

    That ruling was batshit. It basically said that only vacancies that occur DURING a recess count, and also that the only recess that counts as a recess is the one between Congresses (i.e, something that occurs at it’s most frequent once every two years.)

    That’s crazy.

    to read the advise and consent clause so broadly as to permit nullification while reading the recess appointments clause so narrowly as to frustrate its purpose is just nonsensical.

    I’m not sure how I’m reading either clause particularly narrowly or broadly. The advise and consent clause says the Senate has give its okay for someone to get certain jobs. The recess appointments clause says that if the Senate goes into recess without filling those jobs, President gets to put someone in until the end of the next session.

    You keep hammering on the point that if the Senate never goes into recess, it effectively nullifies the power of the President to staff the government. This is true. I’m not sure how and why that matters re: determining what counts as a recess, though. The Senate being in recess or not is a pretty important thing! It seems like that’s something where either you take the Senate’s word, or there’s a firm objective standard. “This session of the Senate doesn’t count because they were using it irresponsibly to stymie the President” isn’t an objective standard, and it would be a nightmare to adjudicate.

    I mean, what if the Senate were actually sitting each day, conducting business of no consequence, but with a full quorum on the floor and voted being taken? How do you go about proving that they’re only doing that to stop recess appointments happening?

  99. LosGatosCA:

    This is not originalism, it’s nihilism. The broader context across decades is now starting to come into sharp relief. It’s been hostage taking and scorched earth for three decades now. The interruptions only seem to occur when Republicans are in charge, but in fact it continues in a more organized and therefore more palatable way. Sabotage of non-corporate controlled institutions like the NLRB, the Department of Labor, the Civil Rights Commission, the Department of Justice, and even the Judiciary through appointment blocking when they are not in power and appointing nihilists cloaked as corporatists when they are in power.

    These Republican parasites are fully committed to killing the host. That’s what the debt limit and all this constant brinkmanship are about. It’s not about winning or losing, it’s about the purification of the fire that brings everything crashing down. At core these people are small, delusional, sick bastards.

    It’s almost comical to think that Nixon wanted to impound funds when contemplating that the party that controls the House thinks it’s reasonable to default on the national debt.

  100. sibusisodan:

    Sure. And that seems fine. Much of relevant legal precedent involves the third branch of govt adjudicating on disagreements between the two (at least to my non-lawyerly eyes).

    Congress has the power to say that they are a walrus. That doesn’t require everyone else to agree that they are a walrus, or to act as if that were true.

    And disagreeing with Congress doesn’t take away their ability to declare themselves a walrus. It just reminds them that they can set their own rules, but not alter objective reality for other, coequal, branches of govt.

  101. Cody:

    I don’t see why having a standard for this would be so awful.

    If at least 51 Senators are not in the building, then the Senate is not in session, or something like that.

    If Republicans want to not campaign for re-election in order to stop appointments, let them. I really doubt they would actually stay at DC for that reason. Their campaigning and vacations all happen away from home.

  102. John:

    But you said they had the foresight to create it for that reason. You may not actually care how the framers thought it would work, but the idea that Obama’s use of recess appointments is consonant with the intentions of the framers is certainly implicit in what you are saying. I guess I don’t see what purpose is served by praising the framers for “foresight” if you’re not an originalist, especially when the provision had nothing to do with such “foresight”.

  103. John:

    That doesn’t make much sense. Wouldn’t the “time of adjournment” have to do with when congress adjourns?

  104. John:

    What needs to happen is that we need to end the 60 vote Senate. Recess appointments are a deeply imperfect means of getting around that.

  105. John:

    It’s not only between one congress and the next. It’s between sessions, and there’s a constitutional requirement for at least one session each year.

  106. Scott Lemieux:

    but the idea that Obama’s use of recess appointments is consonant with the intentions of the framers is certainly implicit in what you are saying.

    If you’re already an originalist, I guess. To me, it means “the framers included a provision that happened to be useful, so the courts shouldn’t stop it from working.” None of this depends in any way on assuming that we should care how the power was expected to work in 1789.

  107. Scott Lemieux:

    It seems like that’s something where either you take the Senate’s word, or there’s a firm objective standard.

    The latter point is the problem. As you say, if you create an “objective standard” in terms of a bright-line rule, it’s just a telling the Senate how to nullify presidential powers. It would be like substituting the cruel and unusual punishment clause with a specific series of punishments that are banned. Much better is a standard along the lines of “recess appointments are presumptively constitutional. Pro forma sessions in which the Senate isn’t actually doing anything don’t count as “sessions” for the purposes of the recess appointment power. Reading Article II as a whole rather than as a series of random isolated commands, we will not allow the Senate to conduct sham sessions for the sole purpose of frustrating the presidential appointment power.”

  108. Scott Lemieux:

    The 60 vote Senate is a major part of the problem, but it’s not the only problem. Obstructionism would still be a major issue when the Senate and White House are held by different parties.

  109. Murc:

    Reading Article II as a whole rather than as a series of random isolated commands, we will not allow the Senate to conduct sham sessions for the sole purpose of frustrating the presidential appointment power.

    .. the Senate is allowed to frustrate the Presidential appointment power! That is something they have the power to do, because they need to go into recess in order for that appointment power to exist. The Senate deciding they don’t want the government staffed is bad governance, but is not presumptively illegitimate.

    And in a practical sense, how do you adjudicate this? It means trying to divine the intent of the entire Senate Majority.

  110. Scott Lemieux:

    That is something they have the power to do, because they need to go into recess in order for that appointment power to exist.

    The structure of Article II also assumes that Congress will go into recess, and also assumes that the president should have the power to staff the government in cases where the Senate can’t or won’t perform its duties.

    And in a practical sense, how do you adjudicate this? It means trying to divine the intent of the entire Senate Majority.

    This “problem” is utterly banal. Again, your argument is one we’ve been familiar with from conservatives trying to write the 14th Amendment out of the Constitution. “If you adduce any evidence of discrimination other than a local official admitting it in open court, you’re trying to see into their heart and discover the unknowable!” Most of the time, this really isn’t a difficult question. If the Senate 1)is routinely obstructing presidential appointments and 2)is holding “sessions” in which it doesn’t do anything but nominally declare a session as part of a pattern of obstructionism, it’s safe to infer that the pro forma session is a sham, and the president should be able to use the recess appointment power. If there’s a marginal case we can worry about it then, and much of the Constitution does not in fact foreclose the possibility of marginal cases where the law is indeterminate. Should we stop trying to determine what a “reasonable” search is too?

  111. Marcella:

    Wow, that’s what I was looking for, what a stuff! present here at this weblog, thanks admin of this site.

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