Symposium: Listen to the Senate’s recess bell

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 Gerard Magliocca, a Professor of Law at the Indiana University Robert H. McKinney School of Law.    

The Justices should decide National Labor Relations Board v. Noel Canning by deferring to the Senate’s interpretation of its rules and practices governing recesses.  To paraphrase the late Admiral James Stockdale, Ross Perot’s vice-presidential running mate in 1992, the question for the Court is “why are we here?”  Senators and Presidents have successfully resolved disputes over the recess appointment power for over two centuries.  There is no compelling reason for the courts to disturb this longstanding tradition.  Moreover, respect for the separation of powers counsels against a judicial decision on a procedural rule of the Senate.  Accordingly, the Court should hold that the Senate’s rules control whether that chamber is in recess and that the Senate’s construction of those rules should determine the status of a particular recess appointment unless that interpretation is unreasonable.

The validity of President Obama’s recess appointments to the National Labor Relations Board (“NLRB”) in January 2012 is being challenged on three constitutional grounds.  The first is that the Senate was not in recess when the appointments were made because that body was holding a brief pro forma session every three days during the relevant period.  Next, there is the argument – embraced by the D.C. Circuit below – that recess appointments can be made only between congressional sessions (in other words, after the Senate ends the first year of a given Congress but before the second year begins) and that the NLRB appointments did not fall within this window.  Finally, there is the broader contention – accepted by two judges below – that the vacancies the President seeks to fill with recess appointments must also open up between congressional sessions, which was not the case here.  Assuming that the constitutional issue must be reached, the first of these three claims is the correct ground of decision.

Article One, Section Five, of the Constitution provides:  “Each House [of Congress] may determine the rules of its proceedings.”  The question of when any legislative body is in recess and when it is not is an integral part of its rules.  Sure enough, the Standing Rules of the Senate refer more than once to a recess.  For example, Rule 31 discusses executive nominations and describes a scenario where “the Senate shall adjourn or take a recess for more than thirty days.”  Rule 22 also refers to a motion to recess, as distinct from a motion to adjourn.  And anyone who watches C-SPAN2 knows that, at the end of every day that the Senate is in session, the Majority Leader or his designee requests unanimous consent that the Senate “stand in recess” until the next day or its next meeting.  The Senate’s procedures do not identify the exact contours of a recess, but there is no indication there that a recess only occurs between the first and second years of a Congress, as the D.C. Circuit held.

In Noel Canning, the D.C. Circuit incorrectly substituted its own definition of recess for the one used by the Senate.  A Senate rule is not always insulated from judicial review, of course, but a court should use the Senate’s rules as the relevant source of authority unless the Constitution contains a specific command about how Congress should function or interact with the other branches.  Otherwise, the text of Article One, Section Five would be meaningless.  In this case, the text does not define “the Recess” of the Senate in a freestanding fashion.  At best, the inquiry undertaken by the D.C. Circuit (and the Third Circuit in a related case) demonstrates that the most common understanding of a recess at the Founding was that it referred to the break between the first and second years of a legislature.  This is not the same as saying that the Constitution fixed the meaning of recess.  A more logical conclusion is that the text just incorporates the Senate’s definition of a recess, whatever it may be at the time.  The contrary reading would deny part of an independent branch of government the power to adapt its procedures or practices to meet the needs of its constituents.

The Senators who are supporting the respondents in Noel Canning are playing with fire.  If the Supreme Court can set aside the Senate’s rules in the name of the Constitution with respect to a recess, then why should the rule governing the filibuster be free from judicial scrutiny?  Many people believe that the Senate’s rule requiring sixty votes to proceed to a vote on many matters is unconstitutional.  It is child’s play to demonstrate that legislatures in the eighteenth century used a majority-voting rule for ordinary business and that filibusters as the Senate currently practices them were unknown.  One could thus say that Article One’s reference to “[e]very bill which shall have passed the House of Representatives and the Senate” was originally understood not to include supermajority thresholds prior to passage.  The standard response to that claim is that the filibuster involves only a procedural rule and that the Senate is not bound to follow the legislative norms of the 1780s.  Affirming the D.C. Circuit’s holding on the definition of “the Recess” would undermine that rationale by rejecting those arguments.

Establishing that the Senate’s rules are the controlling authority for when a recess occurs does not explain how those rules should be construed, but the Senate’s interpretation of them should be given great weight.  The Senate is more knowledgeable about its precedents than any court, and respect for the separation of powers suggests that de novo review of the Senate’s judgment would be wrong.  At the same time, the Court’s precedents indicate that the application of a Senate rule on a presidential appointment is not a political question.  If the Senate blatantly disregards its own rules or practices to deny the President a recess appointment, then the Court should reserve the right to step in, but that would be an extraordinary action to be taken rarely, if ever.  The vast majority of the time, the Senate should be free to decide if a recess was underway when an appointment was made and whether that person is legally entitled to that office.  The upshot of this analysis is that the Senate can block all recess appointments if it is so inclined.  Some may see this as an intolerable limit on the President’s authority, but in reality this just gives the Senate another bargaining chip to use in its perpetual negotiations with the executive branch.  The Senate would be shooting itself in the foot by adopting the position that the President could never make a recess appointment no matter what he offered in return.

In this case, the Senate held pro forma sessions for the specific purpose of preventing the President from making any recess appointments.  As a result, there is no doubt about what the Senate’s view of whether it was in a recess – it was not.  The decision to undertake these pro forma sessions was especially noteworthy given that it was bipartisan, which is a precious commodity these days. There is no persuasive argument that these sessions could not be held under the Senate rules or that pro forma sessions fly in the face of the Senate’s traditional view of what a recess is.  Accordingly, the D.C. Circuit’s judgment (i.e., that the recess appointments to the National Labor Relations Board were unlawful) should be affirmed, but the reasoning of the panel opinion should be repudiated.