On the Recess Appointments

by Shannen W. Coffin

Well, it appears that George W. Bush does not own the intellectual property rights to outrageous abuses of executive power, as his critics seemed to suggest throughout his presidency. Putting aside the constitutional questions for a moment, you have to admire the sheer “audacity” of President Obama. His Democratic colleagues in the Senate develop a questionable constitutional tactic to block President Bush’s constitutional authority to fill vacancies during congressional recesses — a tactic that Senator Obama supported at the time — and President Obama runs right through the old stop sign that he had played a role in holding up against his predecessor. Who says consistency has anything to do with power?

His recess appointments of Richard Cordray and several NLRB members yesterday smack of rather raw flexing of executive muscle. And it is probably as unwise as a political matter as it is interesting as a constitutional question. It is, in D.C. parlance, a “nuclear” option — and it is not clear to me why going nuclear is in his best interest with respect to these particular positions. But Democrats do have some rather odd priorities. They will spin this as fighting for the little guy, which means being able to regulate the breath out of the big guys, middle guys, and everyone else. But I have a hard time seeing that the filling of the Fed’s consumer bureau really gives him a big election-year kick. And the possibility of grinding his executive and judicial appointments to a halt is real — which may, in fact, be the bottom line in what Obama is hoping for. More “Republican-caused” gridlock in Washington.

As far as the legalities, as a purely predictive matter, I don’t see it working in the long run. My former colleagues Steve Bradbury and John Elwood have made a cogent case that the president has the constitutional power to fill vacancies during a faux recess in which the Senate merely gavels in and out pro forma sessions for the sole purpose of frustrating the president’s recess-appointment power. There is much to be said for that view. But as a practical matter, I have a hard time seeing a Court looking behind the Senate’s formal declaration that it is in session and declaring that it is, in fact, in recess. Courts are hard pressed to second-guess Congress’s regulation of its own formalities and procedures, given a constitutional commitment to each House of Congress of the power to determine the rules of its proceedings. Interpretations of those rules are generally left to Congress.

One example, which may not be directly on point but is illustrative of this concern, is the so called “enrolled bill” rule.#more# On occasion, a legislative enactment may be challenged in court on the grounds that the bill that was actually presented to the president is not the bill that both Houses passed. Such a challenge was made to the Deficit Reduction Act in 2005, when a “public interest” group argued that, due to a clerical error, the versions of the bill that passed both Houses were different. But under the enrolled bill rule, courts will not look behind the bill enrolled by both Houses and presented to the president. Once signed by the presiding officers of both Houses, the bill presented to the president is the best evidence of what Congress has done, and courts do not second-guess what might have really happened in both chambers’ consideration of the bill. As the D.C. Circuit concluded in dismissing the challenge to the 2005 act, the enrolled bill is “complete and unimpeachable” in a judicial challenge. 

The doctrine was adopted by the Supreme Court in the late 1800s in a case called Marshall Field & Co. v. Clark, and it was based on a concern for intrusion by the judiciary into the affairs of Congress:

Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act, state and national, should at any and all times, be liable to be put in issue and impeached by the journals, loose papers of the legislature, and parol evidence. Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable.

In other words, courts do not conduct fishing expeditions into the daily affairs of Congress in order to look behind what Congress has declared as their work. I suspect that a similar principle would apply here. So notwithstanding the strong reasons to want to override the Senate’s fraudulent sessions, which are designed only to frustrate presidential power, the end result of the president’s action here may be to limit presidential authority. 

All that said, it is more than a bit comical (to put it kindly) to see Think Progress and other lefty sites relying on Steve Bradbury and John Elwood’s well-considered views of the president’s power here. Steve was the intended target of Harry Reid’s first use of “pro forma” sessions to prevent President Bush from using the recess appointment power. He languished for years as President Bush’s extraordinarily gifted nominee to head the Justice Department’s Office of Legal Counsel. Reid bragged that he used the blocking tactic during several recessess specifically to prevent Bradbury’s appointment. So for the Left to jump on board Steve’s thoughtful analysis as if it were gospel smacks of opportunism.


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