Symposium: The majority opinion should be all the Senate really needs

John Neiman is Chair of the Appellate Group at Maynard, Cooper & Gale P.C.  As the former Solicitor General of Alabama, he was counsel of record for the amicus brief 17 States filed supporting the respondents in Noel Canning. The views below are his own.

The commentary may be underplaying just how momentous a victory yesterday’s decision in National Labor Relations Board v. Noel Canning was for the Senate.  It is no doubt true that four of the Justices, in an opinion concurring only in the judgment, expressed grave concern about the majority’s rejection of some of the more sweeping arguments the respondent offered against the presidential appointments that were at issue in this case. But the respondent here was not the Senate. It was a private company that, in the course of fighting off an NLRB enforcement action, found itself enmeshed in a separation-of-powers fight between two branches of the federal government. And when it comes to the long-run interests of the Senate as an institution, the majority’s resolution of this dispute strikes me a massive and unambiguous win. The senators who filed briefs attacking these appointments weren’t asking for the more sweeping decision the company had advocated. What they wanted was a rule under which their chamber, if it fought hard enough, could keep the president from circumventing their traditional role in the appointment process. The majority of the Court gave those senators that rule.  The practical difference between that rule and the broader one for which the company was advocating relates to how hard the Senate will have to fight when it wants to keep the president in check.

One fact that has gotten lost in the coverage of this case is that for the three specific appointments at issue here, the Senate had put up an extraordinary fight. A critical mass of senators opposed the president’s nominations to the NLRB, as a general matter, on policy grounds. These senators expressed concerns about stances the president’s previous appointments had taken on a number of labor-law issues, including the validity of laws protecting an employee’s right to work without joining a union and measures designed to promote the secrecy of ballots cast by employees during union elections. These senators announced that they would withhold their consent to the president’s future nominees because of their concerns about these issues. And to prevent the president from utilizing the clause of the Constitution that otherwise might have allowed him to appoint these officials during a recess without the Senate’s consent, these senators engineered an extraordinary process by which their chamber did not formally go into recess. It instead convened every three days, in sparsely attended pro forma sessions that generally lasted no more than a few minutes.

The upshot of the Noel Canning majority opinion is that when the Senate is willing to take these sorts of measures, the president can’t use recess appointments to work an end-run around his coordinate branch.  The president had declared that in his view the Senate’s pro forma sessions were baloney; he said the Senate, despite formally insisting that it still was in session, had for all practical purposes gone into recess.  He therefore announced that he would make these three appointments under the Recess Appointments Clause, which authorizes him 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.”  The Court responded by telling the president that the Senate gets to decide for itself when it is in session; the executive and judicial branches don’t get to second-guess the Senate’s announcements on this front.  The Senate had told the president that its doors were still open, so the president couldn’t unilaterally declare that the Senate’s doors were in fact closed.  The message the Court seems to be sending is that as long as the Senate is willing to take the necessary steps to avoid going into recess, it should be fully capable of heading off any real attempt the president might make to abuse the recess-appointments process.

What the majority was unwilling to do, however, was ensure that it will always be easy for the Senate to achieve this result.  The alternative rule Justice Scalia and three other Justices proposed in their separate opinion, for example, would have made things much simpler for the Senate.  It would rendered even pro forma sessions unnecessary for these purposes; these Justices read the plain text of the Recess Appointments Clause as allowing the president to make unconsented-to appointments only for vacancies that actually arise during a recess.  If the alternative rule had governed, the Senate could have formally gone into recess in this instance without any fear that the president would have filled the three open slots.

That rule would have made things easier for the Senate in this particular case, but it may be telling that senators weren’t pushing the Court to adopt that rule. The costs associated with pro forma sessions aren’t particularly steep, and many senators may prefer a regime under which their chamber must at least undertake these sorts of minimalist efforts before it can keep the president from making recess appointments.  Not all vacancies that survive a Senate session will involve fundamental disagreements between the Senate and the President. Sometimes the Senate simply may run out of time before it can get to a nominee.  The best rule for the Senate as an institution might thus be the precise one the Court adopted: if the Senate wants to block the president from making recess appointments, it must take whatever steps are necessary to not go into recess.

The next question that may arise, then, is whether some future president, facing an uncooperative Senate, can come up with a creative way to formally force the chamber to go into a recess.  It seems to me that the answer is likely “no.”  To be sure, Justice Scalia suggested that the president’s allies might make it more difficult to convene pro forma sessions, and Tom has offered some more specific musings on how they might achieve that result.  But if that sort of thing happens, it would simply increase the practical costs the Senate would have to bear if it wants to avoid a recess.  It would not make it impossible for the Senate to take that step. Justice Scalia also raised the possibility of a president invoking his power under Article II, Section 3, which provides that “in Case of Disagreement between” the House and Senate “with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.”  But I suspect that in the end analysis, the president wouldn’t be able to use that particular power to force the Senate into a recess in circumstances like the ones presented here.  The president’s power to force the Senate to adjourn under Article II, Section 3 seems to arise only when the reason the Senate has not adjourned is the House’s refusal to consent to the Senate’s adjournment under Article I, Section 5 – which states that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”  The clause in Article II would not seem to allow the president to force the Senate to adjourn when the Senate wants to keep itself in session.

So at the end of the day, the Senate likely did not need more sweeping limitations on the president’s power to make recess appointments. If anything in the majority opinion should trouble the Senate, it is the methodology the Court used to avoid adopting those sweeping limitations – a methodology that, as Justice Scalia intimated, could leave Congress open to executive-branch power grabs in other, yet-to-be-foreseen areas of the law. But at least as to the specific question of recess appointments, the Senate ought to be perfectly happy with the way the Court resolved this case.