Symposium: Respecting the wisdom of the past vs. inviting new games to play at recess

This week we are hosting an online symposium on National Labor Relations Board v. Noel Canning, in which the Court will consider the constitutionality of the president’s recess appointments to the NLRB.  Lyle summarized the issues in the case last week in a “Made simple” post.

The following contribution comes from Edward Hartnett, a professor at Seton Hall School of Law.

The Supreme Court is poised to address, for the first time, major questions regarding the power granted to the president by the Constitution to “fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” This power exists to enable the president – the only person constitutionally required to be constantly on duty – to keep the executive and judicial branches of the government functioning even when the Senate is unavailable.  Although this is the first time that the Supreme Court will interpret the recess appointment clause, presidents and attorneys general have been interpreting that constitutional provision since the earliest days of the Constitution.  The two issues on which the Solicitor General successfully sought certiorari share a unifying thread: Will the Supreme Court accept the practical wisdom reflected in longstanding executive constitutional interpretation and practice, or will it send the nation off in a different direction, with uncertain consequences?

The first issue depends on what it means for a vacancy to “happen during the recess.” The competing alternatives are frequently described as “happen to arise” and “happen to exist”; that is, must the vacancy begin during the recess, or is it enough that the vacancy exists during the recess? Another way to frame the question is whether a vacancy is something that “happens” at a particular instant in time (like a birth or an appointment) or something that happens over time (like a life or a career). In 1792, Attorney General Edmund Randolph advised that a recess appointment could not be made unless the vacancy began during the recess, but presidents soon disagreed, sensibly interpreting the Constitution to empower them, during the recess of the Senate, to fill offices that they find vacant and need filling, regardless of when the vacancy first began.

The rejection of the Randolph view became firmly established by 1823, when Attorney General William Wirt concluded that the Constitution was better understood to look to the conditions facing the President when he acts, not when the vacancy first began. A decade ago, in response to criticism that a constitutional interpretation from 1823 was too modern, I sought to discover whether the rejection of the Randolph view began before 1823.  I found evidence that Presidents Adams and Jefferson rejected Randolph’s interpretation, but the evidence was inconclusive because the Randolph interpretation requires ascertaining precisely – perhaps to the minute – when someone vacated an office by death, refusal, resignation, discharge, or acceptance of another office. Such precision can be hard to come by, even for contemporaries, providing another reason to reject that interpretation. It is clear, though, that the father of the Constitution, James Madison, issued a recess appointment to fill a vacancy that first began prior to the Senate recess: United States District Judge Dominic Hall resigned no later than March 1, 1813, when he took a seat on the Supreme Court of Louisiana. (Unsurprisingly, the Louisiana Constitution forbade holding both state and federal office.)  The Senate adjourned on March 3, 1813, and on April 13, 1813, President Madison issued a recess appointment to fill Hall’s seat.  By 1862, Attorney General Edward Bates could advise President Lincoln that the question was “settled . . . as far, at least, as a constitutional question can be settled,” and in 1880, then Circuit Judge but soon-to-be Supreme Court Justice William Woods upheld such a recess appointment.

The second issue involves the nature of the recesses that trigger the president’s recess appointment power: is the power available during intra-session recesses during a Senate session, or only inter-session recesses between Senate sessions? Here, too, longstanding presidential practice sensibly interprets the Constitution, which makes no mention of a distinction between intra-session and inter-session recesses, to permit recess appointments during both kinds of recesses.  Nor does the Constitution require that there be but a single session of the Senate every year.  It permits, and our history reflects, more frequent Senate sessions, both numbered sessions called for by law, and extraordinary sessions called by the President.  The Constitution does refer to “the recess,” but this can no more sensibly be read to mean that there is only one recess than the constitutional provision empowering the Senate to choose a president pro tempore in “the absence” of the vice president can sensibly be read to mean that there is only one absence.

This practice is not quite so old as the first one, reaching back only 146 years rather than 200.  But that’s because, in the antebellum years, Congress would take very short intra-session recesses, extending to a week or so around Christmas, and very long inter-session recesses, frequently some nine months in odd-numbered years.  The first time that Congress took an extended intra-session recess, the President made the first known intra-session recess appointment. Courts at the time concluded that the intra-session nature of the recess did not prevent the use of the recess appointment power). While the practice of intra-session recess appointments is not as unbroken as the practice of recess appointment for vacancies that began before the recess, the interruption hardly inspires emulation.  In 1901, Attorney General Philander Knox advised President Roosevelt that, contrary to what had been done and judicially approved earlier, he could make recess appointments only during inter-session recesses. Roosevelt responded by making 160 recess appointments at the inter-session “recess” that occurred, without the Senate skipping a beat, at the instant the presiding officer of the Senate declared the existing session over because the hour for the next session had arrived. After this spectacle, it is not surprising that subsequent presidential constitutional interpretation and practice have rejected the Knox view and returned to the earlier understanding that recess appointments are available in both intra-session and inter-session recesses.

A court looking for an easy-to-administer judicial doctrine might be tempted by the Randolph and Knox views.  But if the Supreme Court were to accept both views, it would empower Congress to effectively eliminate the president’s recess appointment power at will.  All it would have to do is follow the lead of the Supreme Court itself, and decline to end a session (as the Court declines to end a Term) until the moment that the new session (or new Term) begins.  Congress could take as long an intra-session recess as it wants or thinks it could get away with, and nevertheless disable the President’s recess appointment power. Some may be glad of this result, thinking that the recess appointment power is a relic from the days of long recesses, slow communication, and difficult transportation. But if the Randolph and Knox positions are correct, Congress could have eliminated the President’s recess appointment power in 1789. And today, it would empower a determined Senate (or, under current Senate rules, a determined Senate minority) to shut down parts of the government, even the Supreme Court itself with enough time, by refusing to confirm nominees while simultaneously preventing recess appointments.

And in a system designed to enable ambition to counter ambition, unsettling what has long been settled could also provoke difficult-to-predict countermoves. If the Court resurrected Randolph but not Knox, maybe presidents would make recess appointments immediately upon the arising of a vacancy during a Senate recess.  If the Court resurrected Knox but not Randolph, maybe presidents would do what Roosevelt did.  If the Court resurrected both, perhaps presidents would nominate individuals more acceptable to the Senate, but this won’t work if the senators’ goal is to shut down a particular part of the government. Perhaps presidents would call repeated extraordinary sessions of the Senate. Or perhaps, at least when the House and the Senate are controlled by different parties, they would refuse to agree regarding adjournment, thereby triggering the never-used and unexplored constitutional power of the President to “adjourn them to such time as he shall think proper.”

The Supreme Court, at the urging of Noel Canning, has added a third, far narrower question: Whether the president’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.  There are two aspects to this question, one involving three days, the other involving pro forma sessions.

Nothing in the Recess Appointments Clause refers to three days, but the Senate’s scheduling of pro forma sessions was premised on the view, suggested in the past by the executive, that the recess appointment power is unavailable during such a short intra-session recess.  The three-day limit is drawn from Article I, Section 5, which prevents either house from taking a recess during the session of more than three days without the other’s permission. This can be understood as a de minimis rule:  such recesses are sufficiently short to be disregarded. Moreover, there is a parallel between the House/Senate relationship regarding legislation and the president/Senate relationship regarding appointments: In both contexts, two entities are required by the Constitution to act jointly, a recess of one would block the joint action, and therefore a recess of one triggers a counterbalancing power in the other. A court looking for a judicially administrable rule could draw on this parallel to impose some modest limit on recess appointments.

But even if there is a three-day limit, does a pro forma meeting of the Senate suffice to break up what would otherwise be a longer recess? It would be troubling to empower a president to conclude that even though the Senate is, by its own rules, capable of conducting business, its meeting is a sham and it isn’t really able to do anything – particularly when we know that it sometimes does business at pro forma sessions. A decision invalidating these recess appointments on this narrow ground would be far less disruptive than the broad grounds used by the court of appeals.  The president’s best argument in this regard is that he should be able to take the Senate at its word that it won’t actually do any business at a particular meeting, and therefore that the recess continues uninterrupted.  A decision upholding these recess appointments on this narrow ground would change little, because the Senate could simply schedule some completely non-controversial business, such a confirming a military appointment, rather than plan to conduct no business.