Justice Kavanaugh would make the greatest difference in relatively non-political cases about executive power.
I hate to seem like a one trick pony, but this another post on the Recess Appointments Clause. It is prompted by my co-blogger Mike Greve’s post in defense of the modern practice on recess appointments. Mike writes:
I do think important interests are at stake . . . The Constitution sets up rival, competing institutions—and, as a practical matter, compels them to cooperate. Sometimes, it prescribes the mode: bicameral approval, presentment (veto, override). On a million other things, it does not. When coordination problems prove recurrent, the institutions will work out some mutually acceptable practice. Some practices shift and change over time; others become deeply entrenched. But so long as they work tolerably well and don’t violate the Constitution more or less plainly (and yes, that’s a matter of judgment), it’s rarely a good idea to upset them. The practice serves some institutional function and demand. When it’s ruled out of bounds the institutions will have to find some other coordination mechanism. That’s always costly. It may be unsuccessful. And it may well be worse than what went before. Before running those risks (in the name of originalism or for other reasons), we should make quite sure that we’ve got it right.
This is an important objection – and it is held by many people – but I believe it is mistaken. It is worth pointing out why.
There is, of course, a formal – that is, originalist – response to Mike’s point (which he references when he says the practice doesn’t “violate the Constitution more or less plainly). If one looks at the D.C.’s opinion (and even more persuasively, if you will permit me to say it, my article), I think it is plain that the modern practice is unconstitutional.
But there is also a functional – that is, a public policy – response to Mike’s defense of the practice. Mike makes the conservative point that the existing practice, no doubt, serves important interests of the different branches – we just don’t know exactly what they are. But they were worked out by the beneficial process of adjustment and coordination.
Scholars have analyzed this process of mutual adjustment in the separation of powers context. They have analyzed it in terms of the Coase Theorem. If the initial assignment of powers is inferior from the different branches’s perspective, then they will enter into an implicit contract that rearranges the assignment to their mutual benefit. Based on the Coase Theorem, the new arrangement will leave the different branches better off. So what is the harm?
The problem is that the different branches are not the only ones affected by this deal. There is also a third party – the people – who are potentially harmed by it.
In the case of the recess appointment tradition, one might infer that the Senate has traded its power of advice and consent to the President in exchange for something else. We don’t really know what it gets in return. One possibility is that the Senators don’t have to make difficult votes on controversial nominees that might harm them politically. After all, the Congress often delegates power when they want to avoid responsibility. In the modern era of minority party filibustering of nominations, the recess appointment power may allow the Senate to avoid having to engage in a divisive debate about filibuster reform, which might leave the filibuster weaker and individual Senators less powerful.
Notice, though, that these trades benefit the Senators but do not provide obvious benefits to the people or the republic. But in all cases what the trade does is to undermine an important check – the constitutional requirement that Senate decide on whether officers should be appointed.
The bottom line is that there is not a good reason to believe that the practice of recess appointments serves the republic and quite a few reasons to think it does not. By striking down that practice, the courts can help to force the Senate to serve its job as a check on potentially abusive executive power.