Hard cases make bad law, it is said. And President Obama’s recess appointments to the National Labor Relations Board (NLRB) and the new Consumer Financial Protection Bureau (CFPB) while the Senate was purportedly not in recess indeed present a hard case that tests a major separation-of-powers provision in the U.S. Constitution. But it is a test that Obama is likely to win, even if or perhaps especially if it reaches the current Supreme Court.
On the surface, Obama appears to be circumventing the Constitution’s requirement that he appoint “Officers” of the United States only with “the Advice and Consent of the Senate” (Art. II, sec. 2, cl. 2). As a fail-safe to ensure the government’s ability to function when the Senate was not meeting, the Framers added in the next clause that the president “shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate.” The recess appointee can serve, however, only to the end of the Senate’s “next session.”
By its lights, the Senate was not in recess on Jan. 4 when Obama named Richard Cordray to head the new consumer agency and appointed Sharon Block, Terrence Flynn, and Richard Griffin to vacancies on the five-member NLRB. The Senate had been meeting in so-called pro forma sessions every two or three days during its winter vacation and was not scheduled to resume normal business sessions for nearly three weeks.
In announcing the appointments, however, Obama wrapped himself in the constitutional purpose of enabling two important government agencies to function in the face of obstructionism by the Senate’s Republican minority. “The American people deserve to have qualified public servants fighting for them every day,” Obama said. GOP senators had stalled action on Cordray’s nomination to try to force changes in the new agency’s structure and powers. Republicans had also reportedly signaled that they would prevent action on filling the NLRB vacancies, even at the cost of denying the board a sufficient quorum to take any legal actions.
Republicans and conservative legal experts denounced the action as an unconstitutional power-grab and noted that the pro forma session tactic had been invented by then-Senate Minority Leader Harry Reid in 2007 to thwart President George W. Bush from making recess appointments. The Republicans were not mollified when, a week later, the Justice Department released the legal opinion embodying the advice given to Obama earlier that he could make the appointments.
The 23-page memorandum, signed by Virginia Seitz as head of the Office of Legal Counsel (OLC), begins by emphasizing that the Senate had adjourned on Dec. 17 with a unanimous consent agreement to meet only in pro forma sessions until Jan. 23 “with no business conducted.” Given the “practical construction” traditionally given to the Recess Appointments Clause, Seitz concluded that Congress can prevent the president from making recess appointments “by remaining continuously in session and available to receive and act on nominations,” but “cannot do so by conducting pro forma sessions during a recess.”
Seitz acknowledged that “substantial arguments on the opposite side” would create “some litigation risk for such appointments.” In fact, legal challenges came quickly. Business groups on Jan. 13 added a challenge to the appointments to an existing suit in federal court in Washington attacking a recent NLRB rule. Last week, owners of a New York housing complex attacked the validity of the appointments in seeking to undo an NLRB injunction to end a lockout in a pay dispute. Also last week, 40 Republican senators vowed to file a friend-of-the-court brief attacking the appointments. They did not specify which of the challenges they would join.
The challenges face significant jurisdictional questions; but if courts reach the merits, the appointments stand a very good chance of being upheld. As noted in Seitz’s memorandum, the most recent appellate ruling on the issue, in 2004, upheld Bush’s recess appointment of former Alabama attorney general William Pryor to the federal appeals court in Atlanta. The majority in the en banc decision took a broad view of the president’s power in the face of a narrowing, literalist interpretation of the constitutional language urged by the dissenting judge.
The Supreme Court declined to review the ruling in Pryor’s case, so there is no recent evidence of the high court’s view on the issue. On other questions of presidential power, however, the Roberts Court has definite hawkish tendencies.
Among conservatives, Justice Antonin Scalia has been an executive branch devotee since his attacks on the legislative veto in the 1980s. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. began their legal careers as lawyers in the presidential power-expanding Reagan administration. On the left, newly appointed Justice Elena Kagan also appears to be bullish on presidential power. And the court’s strongest defender of congressional prerogatives, Stephen G. Breyer, is nevertheless a confirmed pragmatist who is likely to see through the Senate’s subterfuge of using pro forma sessions to disguise an actual recess.
Despite its original, limited purpose, the Recess Appointments Clause has become over time a tool for the president to get around delays and obstructions in the Senate. Those who worry about abuses of presidential power may view this as bad practice and bad law. But unless the Supreme Court sets itself against the weight of practice and judicial precedent, Obama seems likely to prevail if this hard case reaches the justices.