Is Recess Over?

The Senate, indisputably in session. (The Washington Post)
The Supreme Court will hear oral arguments Monday in NLRB v. Noel Canning, et al, a case that could significantly limit presidents’ power to make “recess appointments” — that is, to fill vacancies that (according to Article II) “may happen during the Recess of the Senate.” At the time of the drafting of the Constitution, this was a necessary concession to the difficulties of travel and communication, given that the Senate was frequently not available to provide the “advice and consent” needed to seat proposed appointees. These days, the power is more often exercised to make a political point and/or to put appointees in place who would likely otherwise have failed to be confirmed in a timely manner, or at all.
Back in January 2012, President Obama named Richard Cordray to head the Consumer Financial Protection Bureau and added three new members to the National Labor Relations Board, all by recess appointment. The catch was that the Senate was not in recess — or at least said it wasn’t. Since 2007, originally as a Democratic response to President George W. Bush’s aggressive use of recess appointments (he made 170+ ) and then via Republican pressure after Obama took office, the Senate has held brief pro forma sessions even during periods of legislative inactivity, seeking to prevent Senate recesses of sufficient duration to allow for recess appointments. (No one knows how long is “sufficient,” though three days has been a common benchmark. See, for example, the background traced in this CRS report on the subject.)
The Obama administration argued that since the Senate did not – perhaps even could not – conduct regular business during these sorts of sessions, it was not available to perform its advise and consent function. Thus, it was de facto in recess. And thus, recess appointments could in fact be made.
Other than a slate of kudos and denunciations, which correlated rather heavily with partisan preference, the Senate made no formal response at that time. But those regulated by the CFPB and NLRB did. A series of court cases ensued challenging the legality of the actions taken by the appointees themselves, on the grounds that if they weren’t “really” appointed, their decisions are void. So, pro forma met de facto met the D.C. Circuit Court of Appeals, which about a year ago ruled against the NLRB appointments (Cordray himself  was confirmed by the full Senate last July.) The Supreme Court accepted the case last June.
The basic issue facing the court is what counts as a “recess” — and, along the way, whether the Senate, or the president, gets to decide whether the Senate is sitting. Here I tend to agree that the Obama administration overstepped. In its memo in January 2012, the DOJ’s Office of Legal Counsel concluded that “the President… has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.” But as the D.C. Circuit responded, “Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.”  The president was acting rationally in the face of opposition obstructionism, seeking to activate the CFPB and rescue the NLRB from quorum-less impotence. But that doesn’t mean his actions were legal.
From there, however, the D.C. Circuit went on to conduct its own foray into the land of overreach. The opinion goes on to cement an allegedly emphatic difference between the Senate being in recess, and “the Recess of the Senate” envisioned in Article II, Section 2. After reviewing the grammatical distinction between “a” and “the,” the court comes to the (or at least an?) “inescapable conclusion that the Framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings.” This, the opinion goes on, “is not an insignificant distinction. In the end it makes all the difference.”
It may make all the difference to the recess appointment power itself. According to the ruling, “the Recess” must be the period between Senate sessions — thus, during the interim between (say) the 110th Congress, 1st session, and the 110th Congress, 2nd session, provided that the Senate has adjourned, sine die, in between. Further, the court went on, only vacancies that actually come into being during “The Recess” can be filled in this way. A vacancy that has existed since before said Recess doesn’t count. This, too, has some grammatical support within the text of Article II noted above.
This position has some scholarly support (see, e.g., Jonathan Turley’s recent post), but history seems to point the other way. Intrasession appointments have occurred since 1867, and with some regularity in the postwar era. On the question of when vacancies must arise, attorneys general and courts have long supported the notion that ‘may happen’ should be read ‘may happen to exist.’  (See the CRS report above for useful detail and references.)
There is much for the Supreme Court to ponder here, as Carl Cecere points out in a useful essay at Scotusblog. His post suggests that “original intent” is not so self-evident and that the history provides fodder for both sides. More recent opinion is split too: In 2004 the 11th Circuit Court of Appeals (responding to a Democratic challenge to a recess appointment made by Bush) upheld the appointment. The circumstances were different, since the Senate was indubitably in recess, but nor was it between sessions; that decision held explicitly that “the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause” (p. 8).  On the other hand, in May 2013, the 3rd Circuit upheld the distinction, following the DC Circuit’s reasoning. So the question is certainly ripe for the Supreme Grammarians.
I am suggesting a split decision here: The Senate wins (and thus so does Noel Canning), but the D.C. Circuit’s dictionary loses. It is worth remembering that constitutional ambiguities between the branches are normally worked out in practice; even after the Supreme Court declared that legislative vetoes were unconstitutional, in the 1983 Chadha case, Congress and the president continued to put them into law because they were too useful a powersharing device to set aside. True, the recess appointment power is less crucial when the president commands a partisan majority in the Senate in the post-“nuclear option” era. But that will not always be the case. And firmly on the side of Supreme pragmatism is that endorsing the entire D.C. Circuit holding would be to wipe out not just administrative decisions made by hundreds of recess appointees over time (indeed, since 1867?) but, presumably, to vacate decisions made by the many judges appointed this manner. Given that several appointees to the current court share a background in the executive branch (Chief Justice John Roberts’s job in the Reagan administration was to defend things like recess appointments), I’d be surprised to see them go that far.