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Friday, January 25, 2013

Decision On Executive's Recess Appointment Power

Text here:

This is a very powerful ruling:
The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government. In light of the extensive evidence that the original public meaning of “happen” was “arise,” we hold that the President may only make recess appointments to fill vacancies that arise during the recess.

and by "recess", they mean the period that elapses between the end of one Session of Congress and the next Session:
Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board. When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” The Federalist No. 67, at 408 (Clinton Rossiter ed., 2003). 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.” Thus, background documents to the Constitution, in addition to the language itself, suggest that “the Recess” refers to the period between sessions that would end with the ensuing session of the Senate.
Most interesting. The court eviscerated the argument that the President gets to decide when the Senate is in recess or not:

Nonetheless, the Framers recognized that they needed some temporary method for appointment when the Senate was in the recess. At the time of the Constitution, intersession recesses were regularly six to nine months, Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1498 (2005), and senators did not have the luxury of catching the next flight to Washington. 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. But they put strict limits on this method, requiring that the relevant vacancies happen during “the Recess.” 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. 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.
I agree with this court, btw. Because of the breadth of the decision, it is surely going to the SC.

Comments:
This is a big deal if it stands. Volokh points out some weaknesses in the ruling, though:

http://www.volokh.com/2013/01/25/dc-circuit-strikes-down-president-obamas-recess-appointments/

My guess is that the SC will hear the case and will strike down the "vacancies which arise" portion of the ruling. As to the rest...

Well, we'll find out soon enough whether the SC has the guts to stand in the way of the Executive.
 
The vacancies which "arise" is the really strong part about it. That has the best support.
 

From Volokh:

"Although the first Attorney General, Edmund Randolph, read “happen” to limit the power to filling vacancies that arise during the recess of the Senate, by 1823, Attorney General William Wirt had reversed course and said it extended to vacancies that “happened to exist” during the recess. And there it has remained ever since. The D.C. Circuit’s conclusion conflicts with the Eleventh Circuit, the en banc Ninth Circuit, and the Second Circuit on this score."

Reading "happens" as "exist" has been a precedent since 1823. The precedent seems wrong to me, an obvious loophole in the "advice and consent" clause that needs to be plugged. I'll be surprised and pleased if the Roberts court does the plugging.
 
Under the rules-of-order of the Senate, isn't there a formal motion to recess that's approved by a vote of the whole body?

So a vote to adjourn for a week would not be the same as a vote to recess; and Beloved Leader would have no standing for his announcement that "you're not in session so I'm declaring that you're in recess".

As clear-cut as that. Right??
 
Under the rules-of-order of the Senate, isn't there a formal motion to recess that's approved by a vote of the whole body?

So a vote to adjourn for a week would not be the same as a vote to recess; and Beloved Leader would have no standing for his announcement that "you're not in session so I'm declaring that you're in recess".

As clear-cut as that. Right??
 
Under the rules-of-order of the Senate, isn't there a formal motion to recess that's approved by a vote of the whole body?

So a vote to adjourn for a week would not be the same as a vote to recess; and Beloved Leader would have no standing for his announcement that "you're not in session so I'm declaring that you're in recess".

As clear-cut as that. Right??
 

That's what would be left if the "arise" part is struck down. The NLRB appointments would still be vacated.

 
A_Nonny. Yes, but this court also ruled that a recess appointment could only be made for a vacancy that arose in a recess.

So there are two determinations here - first that the "recess" definition is that period that occurs between the ending of one Congress and the beginning of another, and second that recess appointments can only be made for vacancies that occur in the period between the end of one session and the beginning of another.

This decision is in conflict with the Eleventh's decision, which is why I think the SC has to take it up.

This is a very far-reaching decision.
 

M_O_M,

What I think is interesting here is that this is a test-case for Constitutional literalism. The DC Circuit overruled an executive action which common sense would say violates the separation of powers. But in order to find the legal justification, they thought it necessary to fall back on a textual reading of the Constitution; parsing the Founders' intent at the time of ratification.

If this is upheld, even in part, it will be difficult for the SC to stuff the literalist genie back in the "emanations and penumbras" bottle.

 
Neil - that's partly what struck me over the case.

Of course the full facts behind it are kind of shoving the court to this measure. One of the "recess" appointments was a second recess appointment for a position open originally in 2010, with no attempt at a Senate appointment ever having been made. This has recently become an administration strategy - to never bother to go through the Senate process at all, but instead to wait for a recess and just appoint whomever. Berwick was done that way. So when Congress responds by not recessing, then you pronounce them in recess and do it anyway!

What's a court to do? It really was an abuse of power so extreme that it waves the red flag of separation of powers.

Also the administration's argument that the Executive gets to judge when Congress is in "recess" is almost a mockery.

I do not think Carney's reaction today at the press conference was helpful either.

The fact is that the Senate was meeting, and in one of those sessions at least (Dec 23rd), they did pass a law (as was noted in the ruling). In the Jan 3rd meeting they officially met to satisfy opening date set in the Constitutioin. They certainly were not in recess under the original meaning of the Constitution, and courts are loathe to put their imprimatur on a procedure that genuinely does shift the balances of power between the different branches.

Cordray was another such "recess" appointment - no attempt was ever made to go through the confirmation process.

If the court had said "well, okay" to this, it's not clear that most appointments wouldn't be filled this way, and almost any court is going to be unwilling to de facto nullify the Constitution this way.

All three on the panel voted that the appointments were not constitutional One (Griffith) thought that the court here did not have to decide the question of whether a recess appointment is valid for a vacancy occurring earlier than the recess. Griffiths did comment that the appointment of positions for earlier vacancies was suspect, but he also pointed out that there was more history of doing it. So Griffiths objects that since the case doesn't require that that particular point be decided, it shouldn't be.

Of course, if all three of them had punted on that question one can well imagine that the next suit would be on that issue. It is true that generally lower courts try to do the minimum of constitutional interpretation, although the SC sometimes gets irked and goes all out.

The administration opinion on the president's authority for these three appointments is set forth here.
 
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