Balkinization  

Wednesday, November 21, 2007

The Constitutional Significance of the Thanksgiving Weekend (or, Constitutional Hardball and Recess Appointments)

Marty Lederman

Senate Majority Leader Harry Reid and Virginia Senator Jim Webb think they have found a solution to the problem of unconstitutional recess appointments: every three or so business days during the Thanksgiving break, they will convene "pro forma" sessions of the Senate, lasting only a minute or two. (The schedule was announced by Senator Webb on Monday.) They think this will prevent the President from appointing officers during this intra-session adjournment.

I'm not sure why they're so confident. The Recess Appointments Clause (RAC) provides that the President "shall have Power 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." Art. II, sec. 2, cl. 3. I have argued -- see my posts here and here, and briefs I filed on behalf of Senator Kennedy (with Larry Tribe, Tom Goldstein and Amy Howe) here and here -- that this gives the President the power to make appointments without the Senate's participation only between Sessions of the Senate (of which there are generally one per year, or two every election cycle).

Since 1993, however, the Executive branch's view has been that the term "the Recess" in the RAC refers to any suspension or remission of Senate business, no matter how short. (The history of the Executive branch's views is discussed in the briefs linked above.) That means that if the Senate breaks for ten days, or for three, or overnight, or for a lunch break, the President can unilaterally make appointments to federal office, including to the federal judiciary, and those appointees can stay in their positions until January 2009, when the Senate's next session begins.

On this view, there would be nothing to stop President Bush from appointing, say, a new Surgeon General -- someone the Senate would never confirm -- during the short three- or four-day breaks that Senators Reid and Webb have scheduled.

Senators Reid and Webb are no doubt relying on certain prior representations of the Department of Justice. In briefs to the courts, DOJ has occasionally hinted that, in its view, adjournments of three days or less might not be "the Recess" to which the RAC refers -- a sort of de minimis exception. But there's really nothing to be said for such a de minimis rule -- it makes no constitutional sense -- which is why DOJ has never really embraced it. (See note 10 of the Franklin brief, and pages 39-42 of the Stephens brief. DOJ no doubt occasionally floats the idea of a possible three-day exception just so it can try to distract courts and others from the absurd ramification of its actual legal argument, which is that the President may make recess appointments every weekend, indeed, every night.)

Moreover, President Bush and other recent Presidents have gotten in the habit of appointing officers very soon before the Senate reconvenes -- the most egregious example being Judge Pryor, who was appointed on Friday, February 20, 2004, with the Senate returning three days later, on Monday, February 23d.

What then, is to stop the President from making appointments at the outset of one of the Reid/Webb "mini-breaks," three days before the Senate's reconvening?

Only this: Precedent. No President has ever made a "recess" appointment during an [CLARIFICATION: intrasession] break of fewer than nine days. Technically, then, President Bush would be breaking new ground, taking the Executive's theory of recent years to its logical conclusion, which is that unless the Senate remains continuously in session, the President has the power to circumvent the legislative branch as to any and all federal appointments (of up to two years' duration). It would be an audacious move. But I wouldn't bet against it. After all, other than his reputation for constitutional fidelity -- purporting to respect "original intent" and to reject "living constitutuonalism" -- what has he got to lose?

[UPDATE: Thanks to a post from Brett in the comments section, it now occurs to me that something else might be going on here: Perhaps the Senate is not only splitting up its Thanksgiving break into small segments but also, and more importantly, designating each of those segments a separate "session" of the Senate, so that the First Session of the 110th Congress (of the Senate, anyway), ended on November 16th; the Second Session (or perhaps "Session 1A"?) began and ended on November 20th; the Third Session will occur on Friday morning; etc. That would not prevent the recess appointments during the interim periods, but it would mean that any such appointment would only last a few days (until the end of the next "session"). That would still leave open what happens if the President makes appointments right before the end of the last of these "mini-sessions," i.e., on December 2d. Such appointments would not expire until January 2009, unless the Senate makes a practice of convening these numerous "sessions" during every extended break from now until the end of the Bush Presidency -- which would not foreclose the President's hardball, but which would make it somewhat futile.

Is this what's going on? The Congressional Record is still recording this as the "First Session" of the 110th Congress, but who knows?: Perhaps that's wrong.

I'd be grateful for any insight into how the Senate rules and practices are at work here.]

[FURTHER UPDATE: Some commenters argue that because the RAC applies only to those vacancies "that may happen during the Recess of the Senate," it should be entirely inapposite to vacancies that came about before the recess or adjournment began, regardless of what the right meaning of "recess" might be. This argument is discussed in footnote 11 of our Stephens amicus brief, and it is the principal basis of Judge Barkett's thoughtful dissent from the court of appeals' decision in Stephens. I think it's right. Nevertheless, the Executive branch practice on that question is not at all novel. Since at least 1823, the Executive branch has taken the view that the word "happen" in the RAC must be construed to mean "exist," see 1 Op. Att'y Gen. 631, 632-33 -- although supporters of this argument "must, in candor, admit that their construction is not conformable to either the literal or the ordinary import of the words 'may happen,'" Case of Dist. Attorney of United States, 7 F. Cas. 731, 735 (E.D. Pa. 1868) (No. 3924).

Comments:

Why not play it safe and keep the Senate continuously in session? Would this have any negative consequences? The Senators present could not conduct any business in the others' absence without a quorum, so it would suffice for each party to have at least one Senator present to suggest the absence of a quorum.
 

Strictly speaking, if we're going to be consistent, if the President can make recess appointments every night, then don't they only last until the NEXT night?
 

I am not sure what the point would be of establishing a "mini-session" until the President actually makes a recess appointment, at which point a new session could terminate the appointment. Anyway, I don't think the Senate on its own can end the current session-- both Houses would have to adjourn sine die.

The more likely explanation for the Reid/Webb arrangement is that it constitutes a warning to the President not to try recess appointments. If the President doesn't make such appointments, the Senators get credit for standing up to the Administration and protecting the Senate's prerogatives. If he does, they have at least raised the political temperature on the issue and given themselves some momentum for taking strong action in response.
 

AP noted:

"A pro forma session, during which no legislative business is conducted, satisfies the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other." [Art. I, sec. 5]

That suggests what is going on here. But, the idea that the President can make a 'recess' appt all the same, suggests Congress has to be in continual session. If this move isn't enough, maybe that will be the next tact.
 

Joe: I agree that they must have something about the Adjournment Clause in mind, but as we discuss in those briefs, the Adjournment Clause of Article I really has little or nothing to do with the RAC of Article II.
 

Marty,

To throw a fly in this ointment, is there not more constitutional hardball that the Executive branch can play by using Section 3 of Article II? To wit:

"...in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;..."

Given a "disagreement" between the House and the Senate regarding a Thanksgiving adjournment, one could imagine this Executive branch ordering the Senate to adjourn, and thereby allowing the Executive branch's recess appointments to go forward.

Yes, this would indeed be one of the penultimate acts of Executive branch hardball, but given the past audacity of the likes of Addison, I'd not discount its possibility entirely. *g*
 

Or the Senate could actually vote on Bush's nominations and fill the posts? Why exactly is the majority party filibustering?
 

Nine days is the record? Is the Wikipedia article wrong when it says "[Theodore] Roosevelt made several recess appointments during a one-day recess of the Senate"? I've seen several other mentions of it around.
 

Keith--Theodore Roosevelt did one better than that. He made 160(!!!) recess appointments in one instant. Really. See T.J. Halstead, Cong. Research Serv., Recess Appointments: A Legal Overview 10 (2005), available at http://fpc.state.gov/documents/organization/50801.pdf.
 

Keith, Brian: Sorry, I meant the record for recess appointments during the shortest *intrasession* break. The TR case involved a so-called inter-session recess, in which he made appointments at the "instant" between sessions. That was probably impermissible, too -- but it's a different problem.
 

Congresses always run exactly two sessions, one for each year between elections.
.
The "shortest recess that is amenable to making a recess appointment" is based on custom, as you point out.
 

cboldt:

Actually, there have often been more than two official sessions per Congress. And in any event, there's nothing in the Constitution requiring any particular number of sessions per Congress.
 

I don't know of a case of multiple "sessions of Congress" having occurred within the 365 days following the start of a session. I'm off to look for such an event.
 

Easy enough to find ... plenty of "3 sessions per two years," before the ratification of the 20th amendment.
.
All "Sessions" of the House of Congress
.
And there is also the "Special Session" possibility.
.
But seeing as the Senate did not adjourn "sine die" last week, we aren't in a period of multiple sessions being created by pro forma meetings.
 

Notwithstanding the other arguments, the US Code makes it clear that anyone given a recess appointment while the Senate is still in session can't be paid

TITLE 5 > PART III > Subpart D > CHAPTER 55 > SUBCHAPTER I >
§ 5503. Recess appointments
(a) Payment for services may not be made from the Treasury of the United States to an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate. This subsection does not apply—...

 

I would think that the better point is that as Michael Rappaport argued, if one's going to be an originalist (or even just a textualist), the RAC's authorization to fill "vacancies that may happen during the recess" is difficult to read as an authorization to fill any vacancies except those that happen during the recess. If one accepts that "happen" means "arise" not "exist" (and it's contrary to modern practice, I concede), as I do, the question of how long a recess or what kind of a recess is good enough to warrant a recess appointment becomes irrelevant if (as here) the vacancy existed when the Senate entered its recess.
 

Correct me if I'm wrong, but aren't these the guys who complained so bitterly about the prospect of the "nuclear option"? That particular bit of slight-of-hand is nothing compared to this rot.
 

Would the president really go through the trouble of breaking precedent in appointing a Surgeon General? I may see a Supreme Court slot or maybe Attorney General... but not the SG. It would just be too much risk for little reward.
 

The other way to read it is from Art I, Sec 5 (NARA Archive):

"Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting."

Which means the House will not consent to letting the Senate adjourn for more than three days :D What a bunch of nasties to do that!! Didn't know there was that much bad blood between the two Houses....

But, more seriously...

From Art II, Sec 2:

"The President shall have Power 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."

If the Senate is in recess during the session, even for an overnight and, say, one of the JCS dies and that position is needed for that branch (say during wartime), the elevation would be done to last until the end of the next session of the Senate after. This lasts until the end of their next session - not the current one no matter how many phases it has. Press the problem down to its worse possible for an overnight appointment and then the question of Senate ratification is given the widest possible time: the remainder of the current session and the next session entire.

If someone absolutely critical to the US government that serves by appointment is needed immediately, can the President appoint that individual during a recess? Yes. The Senate then has time to regard the appointment and the appointee, coming in on an emergency basis, has time to prepare for that.

The Senate can be in 'session' AND in 'recess' during a 'session'. A 'recess' appointment lasts until the end of the next 'session' not the current 'session' which is in 'recess'. There is a distinction there because the sole individual of the President must have that power on the military appointment side to defend the Nation, and it is written so as to allow that and the wider sweep on the civilian side.

Mind you, the Senate can still hold hearings and vote to confirm in the current session... nothing to stop them in doing that if time allows. That is why the 'next session' is put in: scheduling may not allow in the current session of the Senate.

I don't mind if Senators want to wander around DC during the holidays... their constituents, however, might take that as a bit of a slight. Especially if *nothing is being done there*. Like passing the budget.

Have they finished that yet? 01 OCT and all that...
 

Professor Lederman

Having now read the 11th Circuit's opinion, I am struck by one question and one thought. The question is what the court meant in footnote 2 where it notes that it need not address the situation where the Senate itself were a litigant challenging the recess appointment. The implication is that this would raise distinct constitutional questions, but why?

The thought is that while the Reid/Webb arrangement appears, as you note, unresponsive to the fundamental textual disputes discussed in the case, it is at least arguably relevant to the "political question" that the majority identified, but did not address, namely whether the President's use of the recess appointment authority in a particular situation constituted an abuse of that power.
 

Isn't the whole purpose of this provision of the Constitution to enable the President to appoint people to vacancies at a time when the Senate is unable to do so?

The Senate cannot fill vacancies when there is no quorum. So, if there is no quorum for a substantial time period of nine days or more, shouldn't that qualify as a "recess"?

Senator Webb is a big guy, but he's not a quorum.
 

Marty Lederman said,
>>>>>> The Recess Appointments Clause (RAC) provides that the President "shall have Power 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." Art. II, sec. 2, cl. 3. I have argued -- see my posts here and here, and briefs I filed on behalf of Senator Kennedy (with Larry Tribe, Tom Goldstein and Amy Howe) here and here -- that this gives the President the power to make appointments without the Senate's participation only between Sessions of the Senate (of which there are generally one per year, or two every election cycle). <<<<<<


The word "session" is nowhere defined in the Constitution. The word "next" in "next session" implies that the Framers of the Constitution meant "session" here to mean the time between recesses and not the one-year or two-year term of Congress. If the framers meant "session" to mean the one-year or two-year term of Congress, then the appropriate words would be "current session" rather than "next session." And does it make sense that the Framers would have created a major loophole for bypassing the will of the Senate by allowing these recess appointments to be valid for the remainder of the two-year term of Congress? And if the Framers intended to create such a loophole, then why are these unapproved temporary appointments restricted to the recesses?
 

"Senator Webb is a big guy, but he's not a quorum."

Per current practice, if the Congressional Record doesn't take notice of the absence of a quorum, Don Knots would be a quorum, were a voice vote called, and he piped up.
 

Brett, suppose Senator Webb is the only Senator present, and he's conducting a so-called "pro-forma" session for 22 minutes. Then Senator Kennedy shows up during that 22 minutes, and makes a quorum call to establish the absense of a quorum. Are you saying that that quorum call would enable the President to make a recess appointment? Sounds reasonable to me.
 

No, Andrew, I take the recess appointment power to be authorizing the President to fill vacancies which actually occur during times the Senate is not in session, not to wait until it's out of session to fill vacancies which already existed.

In any event, the absence of a quorum doesn't mean the Senate isn't in session, it merely means it can't conduct business.

I'm simply observing that the quorum clause of the Constitution is routinely violated, one of the procedural safeguards in the Constitution which have fallen prey to the Court's tendency to declare violations it doesn't care to do anything about "non-judicable".
 

Brett, your position (i.e. that a vacancy would have to begin during a recess in order for the president to fill it) is certainly a respectable position, though one that has been rejected by most authorities (including at least three circuit courts of appeal). See here. Incidentally, an intermediate position is to determine whether the President has designedly waited to nominate someone so that he could do so unilaterally, in which case I might agree with you.

In any event, the Recess Clause does not say that the Senate cannot be in session in order for the President to act. It seems no less plausible to construe the Recess Clause as saying the Senate cannot be able to conduct business in order for the President to act.

You say that the quorum clause of the Constitution is routinely violated, and has fallen prey to the nonjusiciability doctrine. I disagree. Every single Senator has ample power to defend his interests by insisting upon a quorum. Many constitutional provisions have harmless exceptions like this. The First Amendment, for example, has exceptions for libel and slander, and more generally Congress is perfectly free to completely trample upon the First Amendment as long as the people being trampled upoon decline to sue.

The present situation involving pro-forma sessions is very dangerous, because the people whose constitutional rights and powers are being attacked have very little recourse if the matter is nonjusticiable.
 

"Every single Senator has ample power to defend his interests by insisting upon a quorum. Many constitutional provisions have harmless exceptions like this."

If he's present at the time, you mean. He won't be., which is kind of the point of convening the Senate in the dead of the night with only the leadership present.

What I really find objectionable, though, is the notion that when a law is passed in violation of the Constitution, only members of the Legislature, and not the people who'd be forced to obey that pretend law, have any standing to object.
 

I just want to mention that the original Constitution also used the word "recess" with reference to vacancies in the Senate itself, authorizing governors to make temporary appointments until a state legislature meets. This provision was eventually modified by the 17th Amendment, but still this original provision (which did not mention anything about "sessions") sheds a lot of light on the meaning of the word "recess" in the Constitution. Here's an interesting NY Times article from 1893 on the subject.
 

Andrew- from the part of the NY Times article I could access, it was difficult to determine what, if anything, it was saying about the meaning of the word "recess" for purposes of filling Senate vacancies. Was the point that it was arguing that the Senate vacancy could be filled by the Governor during the recess even though it occurred prior thereto?

While the opinion of the NY Times is interesting, it would be more significant if there were Senate election cases that dealt with the construction of the Senate vacancy provision. I wonder whether there are any.
 

Andrew said (11:58 PM ) --
>>>>>> I just want to mention that the original Constitution also used the word "recess" with reference to vacancies in the Senate itself, authorizing governors to make temporary appointments until a state legislature meets. <<<<<<

We not only need to determine what the word "recess" means here but we also need to determine what the word "session" means here. If "session" in the Recess Appointment Clause was intended to mean the one-year or two-year term of Congress, then the clause would call it the "current session" rather than the "next session." The only reasonable interpretation is that "session" here means the time between recesses.
 

This is off topic:

WANTED: LEAGLE EAGLE

Hey, all of you law professor types: one of you ought to join in the discussion over at Glenn Greenwald and Atrios and the Anonymous Liberal and Firedoglake concerning Joe Klein's idiocy over at the Time Magazine Swampland blog regarding the FISA legislation before Congress.

In a column to be published in Time Magazine, he utterly mischaracterized the FISA legislation and then slammed the Democrats for being weak on national security based on his mischaracterization. He actually accuses them of giving foreign terrorists the same rights as Americans. As Greenwald said:

"The most obvious and harmful inaccuracy was his claim that that bill "would require the surveillance of every foreign-terrorist target's calls to be approved by the FISA court" and that it therefore "would give terrorists the same legal protections as Americans." Based on those outright falsehoods, Klein called the House Democrats' bill "well beyond stupid.""

Why doesn't one of you join in the criticism of Joe Klein for his idiocy? His piece is slated to be published in the next issue of Time Magazine, helping reinforce among millions of readers the stereotypical critique of the Democrats as being soft on terror.

Klein refuses to make an honest correction and admits that he got his interpretation from a Republican congressional staffer. He appears not to have consulted any Democrats or, say, this web site or any of the others that could have explained the facts to him.

He deserves to be made an example of -- to take a shot across the bow of the media whores to let them know that they are not going to sabotage another Democratic election unchallenged.

A trenchant analysis of exactly how wrong Klein is -- and why and how inexcusable his "error" is -- coming from one of you would be very powerful.
 

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