First Legal Challenge Filed To Obama’s Recess Appointments
The first shot in a Constitutional showdown has been fired.
A courtroom in Washington, D.C. will be the setting for the first legal challenge to the recess appointments made by President Obama earlier this month, which Republicans and conservative legal scholars have contended are unconstitutional because Congress was not in fact in recess at the time:
A group of business organizations and individual firms on Friday began the first challenge to President Obama’s new government appointments while the Senate is out of town, using a case involving the National Labor Relations Board to test the issue. In a motion filed in U.S. District Court in Washington, along with a legal memorandum, the challengers argued that the NLRB has no power to go ahead with a pending rule on workers’ rights because the three new appointees were not legally named, so the Board has no operating quorum.
Because the challenge puts a cloud of uncertainty over the NLRB’s authority to take any action, it appears likely that the courts will move quite rapidly to resolve the controversy. Previously, when there were doubts about the Board’s membership, hundreds of actions it had taken had been put into a legal limbo, producing a significant Supreme Court ruling on that in 2010.
U.S. District Judge Amy Berman Jackson in Washington is hearing business challenges to a rule, not yet put into effect by the NLRB, that would require as many as six million employers to put up in their workplaces a permanent poster that notifies their employees of the legal rights they have under federal labor law. That requirement, the so-called “notice posting” rule, is now due to go into effect on April 30. It had been set to go into effect at the end of this month, but the Board postponed it in December at Judge Jackson’s specific request while she ponders the challenge (pending in National Association of Manufacturers, et al., v. NLRB, District Court docket 11-1629).
Although that rule was put into final form by the Board before the President early this month gave “recess appointments” to three new members, the motion filed Friday argued that those appointments are “unconstitutional, null and void,” reducing the Board to only two members, and thus the Board “no longer has authority to implement or enforce the Notice Rule on its purported effective date of April 30, 2012.” (Under the Supreme Court decision in 2010, in New Process Steel, L.P. v. NLRB, the Board cannot take action with only two of its allotted five members.)
The potentially momentous fight over the Obama nominations thus will go first to a federal judge who has been on the bench for less than a year. Named by President Obama initially in 2010 and renominated last year, she won unanimous Senate approval and formally joined the D.C. District Court last March 18.
The Memorandum can be found here, and is quite obviously only the beginning step in this matter. However Judge Jackson rules, this case is likely to be appealed to the D.C. Circuit Court of Appeals and, most likely, the Supreme Court given the unique nature of the Constitutional issues raised here. In all honestly, it’s hard to say how the Courts will approach this matter, though. Rather than ruling on the merits, they could end up dodging the entire thing given the judiciary’s historic reluctance to involve itself in political disputes between the Executive and Legislative Branches. Considering, though, that we’re talking about a question that goes to the nature and extent of the powers of the Presidency, though, I would hope that the Courts would be disinclined to do that and at least give us a final ruling rather than leaving it up to the President and Congress to fight about.
I’ve discussed the legal issues surrounding the President’s appointments and the legal impact of the Senate’s pro forma sessions of the Senate on the question of whether or not the Congress is actually in recess as that term is used in the Constitution. Since then, though, there has been some additional arguments made that will no doubt find their way into the legal pleadings destined to be filed in this case and its coming appeals. First, as Adam Serwer notes, late last week the Justice Department’s Office of Legal Counsel released the legal memorandum that it prepared for the White House to support the President’s authority to make these recess appointments notwithstanding the Senate’s pro forma sessions:
The opinion from the Office of Legal Counsel, authored by Assistant Attorney General Virginia Seitz, argues that these “pro forma” sessions, which have historically been used by both parties to deny presidents the ability to make executive and judicial appointments, can’t be used to block appointments unless the Senate is conducting actual business. The job of the OLC is to provide advice to the executive branch to ensure its actions comply with the law—although at moments under the Bush administration, OLC attorneys turned into virtual rubber-stamps for whatever actions the administration wanted to pursue.
Seitz writes that “while Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess.” Seitz points out that legislators have frequently referred to times of prolonged absences as “recesses,” even if Congress had not technically adjourned. (As Jonathan Bernstein noted, Tennessee Republican Rep. Diane Black said the president’s appointments were unconstitutional because Congress was not in recess, before complaining that the nominees were put forth “a mere two days before the Senate recessed for the holiday.”) Even the administration’s supporters however, have generally acknowledged that the legal questions here are a close call, and Seitz acknowledges there are “substantial arguments on each side.”
“[The opinion] is admirably forthright and candid about the closeness of the question and the arguments on the other side,” says Marty Lederman, a former attorney with the Office of Legal Counsel who, as counsel to Senator Ted Kennedy, had argued that such appointments were not constitutional. “It doesn’t hide anything.”
The OLC’s opinion should end speculation, put forth by conservatives like David Addington, former legal counsel to Vice President Dick Cheney, and even more progressive voices like Bruce Ackerman, that the president had not asked for advice from the Justice Department before making the appointments. The implication from some critics was that the administration knew the appointments were unconstitutional, and therefore didn’t ask.
The bottom line is this: The Justice Department takes the view that when the Senate “is not available to give advice and consent to executive nominations,” it is effectively in recess and the president can make appointments. Moreover, the opinion states that the Senate’s constitutional authority to set its own rules cannot be used to keep the president from making appointments. Key here is that the opinion doesn’t prevent the Senate from blocking appointments—it merely states that the Senate has to actually be in session in order to do so.
The OLC’s long single-spaced memorandum (just warning you) can be found here, and if you’re truly interested in the legal arguments that are likely to unfold over the course of this and probably other litigation that will be filed regarding these appointments, I’d recommend giving it a read. On the other side of the argument, though, Michael McConnell, who served for a decade on the 10th Circuit Court of Appeals and is now a senior scholar at Stanford Law School, is highly critical of the OLC’s reasoning and conclusion:
The Opinion places enormous weight on the fact that the Senate’s resolution providing for pro forma sessions declared that there would be “no business conducted.” There are two problems with this, as a legal matter. First, as the Opinion concedes, the important question is whether at these sessions the Senate is “capable” of exercising its constitutional functions – not whether, on any particular occasion, it has chosen not to do so. Second, in actual fact the Senate has conducted major business during these sessions, including passing the payroll tax holiday extension during a pro forma session on December 23. The Opinion weakly responds that, notwithstanding this evidence of actual practice, the President “may properly rely on the public pronouncements of the Senate that it will not conduct business.” It is hard to see why the Senate’s stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so. The President is well aware the Senate is doing business on these days, because he has signed two pieces of legislation passed during them.
More fundamentally, the Opinion creates an implausible distinction between the legal efficacy of pro forma sessions for various constitutional purposes. According to the Opinion, a pro forma session is not sufficient to interrupt a recess for purposes of the Recess Appointments Clause, but it is sufficient to satisfy the constitutional command that neither branch adjourn for more than three days without the consent of the other (Art. I, §cl. 4) and that Congress convene on January 3 unless a law has provided for a different day. There is longstanding precedent that pro forma sessions are sufficient to satisfy these constitutional requirements. Why a pro forma session would count for some purposes and not others is a mystery. It is difficult to escape the conclusion that OLC is simply fashioning rules to reach to the outcomes it wishes.
Finally, it bears mention that a great deal of the authority OLC cites in support of the President’s authority to make recess appointments during intrasession recesses in the first place – wholly apart from the pro forma issue – consists of prior executive branch pronouncements that are at odds with both the language and the history of the constitutional text. It would not be surprising if the judiciary were to reject these self-serving executive interpretations in favor of more straightforward ones. In particular, courts might rule that the Recess Appointments Clause applies only when a vacancy “happens” during a recess, as the text of Att. II, § 2, cl. 3, says, and that “the recess” of the Senate occurs only between sessions, and not (as here) in the midst of a session. The OLC Opinion acknowledges as much, when it says that the appointments face “some litigation risk.” But the Obama Administration cannot be faulted for following longstanding executive precedent, which has been used by past Presidents both Republican and Democrat. It is only the novel arguments that I criticize here. It seems to me that the Administration is under special obligation to provide a bullet-proof legal argument when it declares invalid a strategy devised by Majority Leader Harry Reid in 2007, supported by then-Senator Barack Obama, and successfully used by them to stymie President George W. Bush’s recess appointment power. The law cannot change just because the shoe is on the other foot.
Reviewing again the arguments I made when this matter first came up, I still tend to think that the arguments in favor of Presidential power are likely to prevail in this matter in the end. However, there are issues that have been raised against the recess appointments that are admittedly persuasive. Perhaps the most important argument against what Obama did two weeks ago lies in the precedent that he has set. Leaving aside the legal challenges that have and will be filed to the appointments, President Obama has set a precedent here that will be followed by every President that follows him, just as Harry Reid’s decision to use pro forma sessions starting in 2007 as a tactic to block President Bush from utilizing his recess appointment powers set a precedent that the Republicans have followed since they took control of the House last year. With the stroke of a pen, President Obama has enhanced the power of the Presidency and just as he did not abandon the additional powers asserted by President Bush, President Obama’s successors are unlikely to surrender this new power unless someone forces them to do it. The Democrats who are cheering the appointments of Richard Cordray and the two member of the NLRB today should ask themselves how they’ll feel if the same power is used by a President Mitt Romney to fill a bunch of judicial seats, and there’s no reason that could not happen when you remember that Earl Warren, William Brennan, and Potter Stewart all made it on to the Supreme Court initially via recess appointments. Once you give the President a new power, or a new way to use their power, it will inevitably be used in ways you don’t like.
In any event, we’re going to hear much more about this issue in the weeks and months to come. Indeed, outside of the ruling on the Affordable Care Act it could potentially end up becoming the most important Constitutional case heard by the Supreme Court in quite a long time.