Justice Kavanaugh would make the greatest difference in relatively non-political cases about executive power.
Last week I wrote a post about the original meaning of the Recess Appointments Clause. Today, I would like to discuss the Office of Legal Counsel’s opinion justifying President Obama’s recent recess appointment of Richard Cordray and three members of the National Labor Relations Board. Sadly, OLC’s opinion is in my view quite weak. It reads as an attempt by the President’s advisers to justify an extravagant assertion of executive power.
OLC relies on the modern understanding of the Recess Appointments Clause. As I argued last week, this understanding is both inconsistent with the Constitution’s original meaning and gives the President unjustifiable power to bypass the Senate’s advice and consent function. To constrain the President’s asserted power, the Senate has in recent years engaged in the practice of holding pro forma sessions. For example, in December and January, instead of holding a longer recess that would have allowed a recess appointment under the modern understanding, the Senate held very brief sessions of approximately a minute – enough to hit the gavel – in an attempt to transform what would have otherwise been a longer recess into a series of 3 day recesses (that would not allow a recess appointment). OLC’s opinion argued that these pro forma sessions did not count for purposes of the Recess Appointments Clause and therefore the Senate recess was a longer one that allowed a recess appointment.
OLC argued that, under the modern understanding, any recess that had the practical effect of preventing the Senate from advising and consenting would permit a recess appointment. Under this view, OLC has in the past concluded that recesses as short as 11 days, and perhaps as short as 3 days, would allow a recess appointment. While OLC relied on the modern understanding to hold that the pro forma session was not a real session, it had to go beyond that modern understanding to reach its conclusion.
OLC’s argument here is quite problematic. First, OLC argues that the President gets to determine whether the Senate’s recess prevents it from advising and consenting. See OLC opinion (“President may make recess appointments when he determines that, as a practical matter, the Senate is not available.”) (emphasis added). But it is not clear why it is the President’s determination that counts. One would assume that the President’s power should depend on whether the recess actually prevented the Senate from advising and consenting. In fact, if either party’s understanding should be entitled to deference, I assume it is the Senate’s understanding. The rules governing recesses are set by each house under the Constitution’s Rules of Proceedings Clause and therefore the Senate has discretion as to what rules to set to comply with its constitutional obligations. See US v. Ballin (1892) (house has power to choose any rule for determining existence of quorum that has a reasonable relationship to making that determination). This suggests that, if any branch is entitled to deference, it is the legislature. OLC’s response, that this deference is not unlimited, is inadequate.
Second, these pro forma sessions are being treated by Congress as real sessions under other constitutional clauses. For example, the Constitution prohibits one house from adjourning for more than three days without the consent of the other. The recesses during December and January were not jointly consented to by the two houses. Instead, each house held three day recesses, bracketed by pro forma sessions, to comply with the constitutional provision. Similarly, pro forma sessions have also been used to comply with the Constitution’s requirement that Congress meet on January 3 in the absence of legislation providing for another date.
If the pro forma sessions are treated as real under these provisions, this is a powerful argument for concluding they are real under the Recess Appointments Clause. While the Constitution does not necessarily employ terms or concepts in the same way in different provisions, there is strong presumption that it does, especially as to relatively technical terms like recess or adjournment. Ignoring this presumption allows the interpreter much more freedom to impose its own preferences rather than the meaning established by the constitutional enactors. The OLC opinion seeks to distinguish these other provisions by saying that the Recess Appointments Clause has different purposes than those other clauses. Without a lot more, this is a very weak argument. If the enactors wanted to establish different rules for these different clauses, they would likely have used different or qualifying language. They would not have assumed that later interpreters would ignore the standard meaning of the terms to pursue allegedly different purposes, which are nowhere articulated.
Third, OLC’s position on pro forma sessions is belied by the fact that the Senate has actually conducted business in these sessions. For example, twice in 2011 (including in December) Congress passed legislation during pro forma sessions. It is true that the Senate had announced that no business was to be conducted, but the Senate often, and in this case, changed its rules by unanimous consent. The existence of business being conducted in a pro forma session in 2011 strongly suggests that it was mistaken for OLC to treat the Senate’s announcement that no business would be conducted as binding. It obviously was not. OLC’s claim that the President is entitled to rely on Senate pronouncements is difficult to fathom. Why is the President so entitled, when background understandings and practice have demonstrated that the Senate does not treat these pronouncements as binding?
To see the problems with the OLC opinion in clearer relief, imagine the following situation. The Senate is in session, debating measures and passing legislation. But its rules announce that it will not be conducting any business on advice and consent matters for three weeks – no hearings, no debates, and no votes. Under the logic of the OLC opinion, why couldn’t the President conclude that he could make a recess appointment during that three week period. After all, as a practical matter, the Senate is not available to advise and consent on nominations. Shouldn’t the President be entitled to rely on the Senate’s pronouncements? That other provisions do not treat this three week period as a recess might be thought irrelevant since those provisions have different purposes. OLC might seek to distinguish this situation by arguing that the Senate would be in session. But that begs the question. The Senate rules said it was in session during the pro forma sessions as well, but OLC ignored those rules for a variety of reasons that also apply to my hypothetical. Is my hypothetical a reductio ad absurdum or a disturbing prediction of the future if the OLC opinion is accepted – or both?