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The Supreme Court Considers the President's Power to Make Recess

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The Supreme Court Considers the President's Power to Make Recess LEGAL MEMORANDUM No. 105 | OCTOBER 9, 2013 The Supreme Court Considers the President’s Power to Make Recess Appointments Michael Stern Abstract The Recess Appointments Clause of the Constitution provides for the Key Points President to make temporary appointments when members of the Sen- ate had returned to their home states. On January 4, 2012, President ■■ The Constitution authorizes the Barack Obama made four recess appointments while the Senate was President to make appointments without the advice and consent conducting pro forma sessions. A federal appellate court invalidated of the Senate when it is in “the these appointments on the principal ground that they were made dur- Recess.” ing a Senate session rather than “the Recess” within the meaning of ■■ This reflects the Framers’ under- the Constitution. The U.S. Supreme Court has never before considered standing that Congress would the meaning or application of the Recess Appointments Clause, but it not be continually in session and has agreed to review President Obama’s recess appointments this term. allows the President to make tem- This case could have significant ramifications for the balance of power porary appointments when mem- between the President and the Senate with regard to the confirmation bers of the Senate have returned process. to their home states. ■■ On January 4, 2012, President n its new term, the Supreme Court of the United States will con- Obama made recess appoint- Isider National Labor Relations Board v. Noel Canning, a challenge ments while the Senate was con- to President Barack Obama’s January 4, 2012, recess appointments ducting pro forma sessions. to fill three National Labor Relations Board (NLRB) vacancies. At ■■ A federal appellate court invalidat- the time of these appointments, every three days, the Senate was ed these appointments principally conducting pro forma sessions during which no business is ordinar- because they were made during a ily conducted. This practice was widely believed to prevent the Sen- Senate session rather than during ate from entering “recess” as defined by the Recess Appointments “the Recess” within the meaning of the Constitution. Clause and was used successfully during the prior Administration to prevent recess appointments from being made. ■■ The Supreme Court has never The U.S. Court of Appeals for the D.C. Circuit invalidated these considered the meaning or appli- cation of the Recess Appoint- recess appointments on two grounds not directly related to the use ments Clause, but it has agreed to review President Obama’s recess This paper, in its entirety, can be found at http://report.heritage.org/lm105 appointments this term. Produced by the Edwin Meese III Center for Legal and Judicial Studies ■■ This case could have significant The Heritage Foundation ramifications for the balance of 214 Massachusetts Avenue, NE Washington, DC 20002 power between the President and (202) 546-4400 | heritage.org Senate with regard to the confir- Nothing written here is to be construed as necessarily reflecting the views of The Heritage mation process. Foundation or as an attempt to aid or hinder the passage of any bill before Congress. LEGAL MEMORANDUM | NO. 105 OCTOBER 9, 2013 of pro forma sessions. First, the court held that the to oblige this body to be continually in session adjournment in question took place within a for- for the appointment of officers, and as vacancies mal enumerated Senate session and therefore did might happen in their recess, which it might be not constitute “the Recess” of the Senate within necessary for the public service to fill without the meaning of the Recess Appointments Clause. delay, the [recess appointments] clause is evi- Second, a majority of the panel held that the vacan- dently intended to authorize the President, sin- cies in question did not “happen” during the recess gly, to make temporary appointments “during and therefore could not be filled under the Clause at the recess of the Senate, by granting commis- all. sions which shall expire at the end of their next The Supreme Court of the United States, which session.”2 has never before considered the meaning or appli- cation of the Recess Appointments Clause, granted Apart from Hamilton’s brief explication, there review of these two issues. It will also consider a is little direct evidence as to the Framers’ intent in third issue: whether the President may exercise his drafting and adopting the Recess Appointments recess-appointment power when the Senate is con- Clause.3 It is generally agreed, however, that this vening every three days in pro forma sessions. clause reflects their understanding that Congress would not be “continually in session” and that there Historical Background of the would be significant periods of time during which Recess Appointments Clause Members of Congress would disperse to return to Article II, section 2, clause 3 of the Constitution their home states. In the context of late 18th century provides that “[t]he President shall have Power to fill transportation, it was not feasible for Members of up all Vacancies that may happen during the Recess Congress to travel frequently back and forth to their of the Senate, by granting Commissions which shall home states during the year, as is common today. expire at the End of their next Session.” This method The purpose of the clause, as explained by Hamilton, of appointing officers of the United States represents was to enable the President to make temporary an exception to the general or ordinary method of appointments during these lengthy periods in which appointment laid out in Article II, section 2, clause the Senate would not be “in session” and would not 2, under which the President nominates and, with be available to act on vacancies that might need to be the advice and consent of the Senate, appoints such filled “without delay.” officers. Notwithstanding the apparently straightforward Alexander Hamilton described the recess language and purpose of the Recess Appointments appointment power as “nothing more than a supple- Clause, two major controversies about its meaning ment” or an “auxiliary method of appointment,” to developed over time. operate “in cases to which the general method [of The Meaning of “Happen.” The first controver- appointing officers] was inadequate.”1 He explained sy regarding the Recess Appointments Clause relat- further: ed to what it means for a vacancy to “happen” during the recess of the Senate. The most natural reading of The ordinary power of appointment is confid- this language is that the President’s power is limited ed to the President and Senate jointly, and can to vacancies that occur or arise while the Senate is in therefore only be exercised during the session of recess and, implicitly, that the President may exer- the Senate; but as it would have been improper cise the power only before the “next session” that 1. The Federalist No. 67 (Alexander Hamilton). 2. Id. 3. See Michael Herz, Abandoning Recess Appointments: A Comment on Hartnett (and Others), 26 Cardozo L. Rev. 443, 445 n. 4 (2005). It is speculated, however, that the Recess Appointments Clause was modeled on a provision of the North Carolina Constitution, which provided: “That in every case where any officer, the right of whose appointment is by this Constitution vested in the General Assembly, shall, during their recess, die, or his office by other means become vacant, the Governor shall have power, with the advice of the Council of State, to fill up such vacancy, by granting a temporary commission, which shall expire at the end of the next session of the General Assembly.” Noel Canning v. NLRB, 705 F.3d 490, 501 (D.C. Cir. 2013) (quoting N.C. Const. of 1776, art. XX). 2 LEGAL MEMORANDUM | NO. 105 OCTOBER 9, 2013 follows the recess in which the vacancy occurs. This Senate’s next session “however ruinous the conse- narrow interpretation of the clause seems to have quences to the public.”7 been generally accepted during the early years of Subsequent Attorneys General followed Wirt’s the Republic, including by Edmund Randolph, the interpretation, but it was met with markedly less first Attorney General.4 Hamilton also had this view, favor in the Senate. In 1863, during the Civil War, the writing in 1799 that “it is clear, that independent of Senate Judiciary Committee considered and reject- the authority of a special law, the President cannot ed Wirt’s view: fill a vacancy that happens during a session of the Senate.”5 When must the vacancy, which may thus be In 1823, however, Attorney General William filled and the appointment to which is thus Wirt issued an opinion rejecting this position. Wirt found to terminate, accrue or spring into exis- addressed the question of filling a vacancy created tence? May it begin during the session of the as the result of the statutory expiration of the com- Senate, or must it have its beginning during the mission of the navy agent in New York. Although the recess? We think the language too clear to admit vacancy arose while the Senate was in session, Wirt of reasonable doubt, and that, upon principles concluded that the President could fill the vacan- of just construction, this period must have its cy once the Senate was in recess. He began with an inceptive point after one session has closed and analysis of the word “happen”: before another session has begun. It cannot, we think, be disputed that the period of time desig- The most natural sense of this term is “to chance— nated in the clause as “the recess of the Senate,” to fall out—to take place by accident.” But the includes the space beginning with the indivisible expression seems not perfectly clear.
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