Will the Courts Look the Other Way & Permit Recess Appointments That Are Invalid under the Constitution?

President Barack Obama’s unprecedented recess appointments last January threaten to eliminate the Senate’s role in the political appointment process and put persons of questionable qualifications — “unfit characters,” as the Framers called them — in positions of power.

The president’s January recess appointees were nominated on December 16, just before Christmas, and appointed 18 days later — even though the U.S. Senate was in continuous “pro forma” sessions. Two of the recess appointees were to the National Labor Relations Board (NLRB or Board); they had not even submitted the background information required of all nominees seeking Senate confirmation. The qualifications of one of the NLRB recesses were subsequently challenged by Senator Orrin Hatch (R., Utah) for the alleged criminal ties of his past employer. This challenge should have been resolved before the nominee was seated on the Board, not after.  

Recess Appointments Challenged in Multiple Courts

In the Obama administration, the NLRB has aggressively moved to remake U.S. labor law to favor unionization and disadvantage those who oppose it. As a result, employers who have been stung by a Board order in which a recessed member participated have filed appeals challenging their authority. If the questions posed in one such appeal by judges of the U.S. Court of Appeals for the District of Columbia Circuit are any indication, the parties — as well as the 41 Republican senators who filed an amicus brief challenging the appointments — may get something they did not ask for, but which the country sorely needs: restoration of the political appointment process to the careful balance established by the Framers.        

Appointment Power Shared

Under the Constitution, presidents do not have unilateral appointment authority. The president’s appointment power is shared with the Senate; each branch has a specific role. The president “nominate[s], and by and with the Advice and Consent of the Senate, appoint[s] . . .” The Framers did not consider this advice and consent function to be peripheral; they were all too familiar with the autocratic exercise of imperial power by British kings. To the Framers, sharing the appointment authority was a necessary check and balance that would prevent a presidential spoils system and the appointment to high office of “unfit characters.” (Alexander Hamilton,The Federalist No. 76.)    

The Framers also understood that they could not obligate the Senate to remain in continual session. Consequently, they provided that when an office of the Executive became vacant “during the Recess of the Senate,” the president would have the power to fill it to keep the government running.

“The ordinary power of appointment is confined to the President and Senate jointly and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay . . .” (Hamilton, The Federalist No. 67.) 

If, as the Supreme Court consistently instructs, ordinary words are to be given their ordinary meaning, “during the Recess” does not mean before the recess and “the Recess” does not mean “a recess,” but the one that occurs at the end of one session of Congress and the beginning of the next. This is the Senate’s inter-session recess, not one of the many intra-session recesses or adjournments taken by the Senate in modern times. This reading of the Recess Clause is supported not only by its text but by the historical context. At the time of the Framers, the Senate was in recess for six to nine months between sessions; once in recess, transportation made it difficult for them to return to vote on an appointment.#more#

The Practice of Some Modern Presidents

This limited, conditional recess appointment power is how the Executive understood its recess appointment authority for over a century (Edmund Randolph, Opinion on Recess Appointments, July 7, 1972). 

This understanding began to unravel when one attorney general claimed that the president’s authority extended to vacancies existing at the time of the Senate’s recess; and 50 years later, another claimed that the executive’s recess-appointment authority extended to recesses taken during a Senate session.

The attorney general who issued this opinion admitted that he did not know how to determine when a “recess” during a session was too short, but he offered the following guideline:

“No one, I venture to say, would for a moment contend that the Senate is not in session when an adjournment of [three days] is taken [the shortest recess the Senate can take without House consent, which is what occurred in January]. Nor do I think that an adjournment for 5 or even 10 days can be said to constitute the recess intended by the Constitution” (Attorney General Daugherty.  33 Op. Att’y Gen at 25).

This view became settled executive-branch policy, followed by modern presidents who made intra-session recess appointments (Presidents Kennedy, Johnson, and Ford did not make any), but set aside by President Obama.   

The Elephant in the Courtroom

In their court filings, counsel for the parties did not address the lawfulness of intra-session recess appointments. Instead, they were satisfied to accept the practice of modern presidents to employ intra-session recesses of the Senate, sometimes as short as 10 to 18 days, to get their nominees into office. Their arguments were more or less centered on defining “a recess” and determining when it is too short. 

The D.C. Circuit lost little time getting to the heart of the issue. Early on, Chief Judge David Sentelle asked the parties, “Why aren’t you arguing inter-session versus intra-session?” There was never a satisfactory answer and when the evolving interpretations of the Recess Clause were brought up, the Chief Judge referred to them as a “parade of horribles.” Nor was there a satisfactory answer when he asked, “What is going to prevent a President from recessing over a weekend or a one day holiday?” Finally, during the closing minutes of the oral argument, Circuit Judge Thomas Griffith summed it up, “Once you remove yourself from the principle [in the Constitution], you are adrift.” 

Is This a Political Question the Court Will Avoid Answering?

The more difficult question for the court may be whether to accept as lawful a practice of modern presidents that the Senate has largely acquiesced in even though the Constitution prohibits it. The courts will avoid “inappropriate interference in the business of other branches of Government” by answering questions on “issues whose resolution has been committed to the political branches by the text of the Constitution.” Undoubtedly, the text of the Constitution gives the president the authority to make a recess appointment, but the power must be exercised consistent with the clause that created it. It must also satisfy other constitutional prerogatives, such as the Senate’s designated role in the political-appointment process and the due process rights of all Americans. These rights are threatened when the protection of our life, liberty, and property is left to political appointees who have not yet been found fit for office under the process established by the Founders.

While the broader constitutional issue is squarely presented in this appeal, the court could choose to limit its decision to the constitutionality of these particular intra-recess appointments, whether the recess was “too short” or whether the president can declare the Senate is not in session despite its repeated statements to the contrary. 

Conclusion

One thing is certain, if President Obama’s exercise of presidential recess-appointment authority is left unchecked, presidents will be capable of using what the Framers considered the “most insidious and powerful weapon of eighteenth century despotism” — unilateral appointment authority (Freytag v. Comm’r, 501 U.S. 868, 883; 1991). 

While ruling on the constitutionality of intra-session recess appointments would be welcome, at a minimum, the court should declare that the intra-session recess appointments of Sharon Black and Richard Griffin to the NLRB, as well as the intra-session recess appointments made with them, were invalid under the Constitution for the reasons given by the appellant and the 41 Republican Senators who filed an amicus brief with the court. 

— Peter Schaumber, a former Chairman of the National Labor Relations Board, comments on labor relations and related issues.