In recess appointments case, Supreme Court looks at an article of the Constitution: ‘the’


People walk in front of the Supreme Court building in Washington, March 24, 2013. (Jonathan Ernst /Reuters)
Reporter June 2, 2013

First, there is the question of what the Framers meant when they used the word “the.”

That is followed by intense debate over another choice — “happen” — that has divided judges and sent one scholar to pore through 11 “Founding-Era dictionaries.”

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

And the Obama administration has supplemented its legal arguments with a letter George Washington wrote when his carriage was in the shop (shoppe?).

The Supreme Court could decide as early as this month whether to get involved in what is shaping up to be a dramatic case about the separation of powers and the president’s ability to make appointments during breaks of the Senate.

Already it has unleashed a flurry of amicus briefs from businesses, unions and constitutional-law organizations and produced a rush of research into the 32 enigmatic words of the Constitution’s recess appointments clause:

“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.”

“This stuff is catnip for law nerds,” Washington lawyer John P. Elwood wrote in a post on the legal blog the Volokh Conspiracy — which, it should be said, is itself catnip for law nerds.

But the issue is hardly academic. Two appeals courts, the U.S. Court of Appeals for the D.C. Circuit and the 3rd Circuit in Philadelphia, have upset decades of understanding about the president’s recess appointment power. The courts ruled that presidents may make recess appointments only between enumerated sessions of the Senate, not when senators take an intrasession break.

Solicitor General Donald B. Verrilli Jr. said in a petition to the Supreme Court that such a reading of the clause would “drastically curtail the scope of the president’s authority.”

“Presidents have apparently made more than 500 recess appointments during intra-session recesses,” Verrilli wrote, “including appointments of three cabinet secretaries, five court of appeals judges, ten district court judges, a Director of Central Intelligence, a Chairman of the Federal Reserve, numerous members of multi-member boards, and holders of a variety of other critical government posts.”

President Obama has used the power fairly modestly compared with recent predecessors. But he went where no other president had gone in January 2012 when he appointed three members of the National Labor Relations Board and appointed Richard Cordray to head the fledgling Consumer Financial Protection Bureau.

Senators had gone home, but the Senate was holding pro forma sessions by convening with one senator every three days. The practice was intended specifically to thwart presidential action on nominees.

The White House justified appointing the NLRB members by reasoning that the Senate actually was in recess because it was not available to fulfill its advice and consent role by conducting business.

A challenge brought by a Pepsi bottler in the state of Washington and backed by the U.S. Chamber of Commerce went to the D.C. Circuit. But the unanimous panel skipped past the question of pro forma sessions for a far broader ruling.

It said the administration’s view of the recess power would give the president “free rein to appoint his desired nominees at any time he pleases.” In saying the appointments can come only between sessions of the Senate, it gave great weight to the Framers’ use of “the recess” rather than, say, “a recess.”

The panel also voted 2 to 1 that the phrase “vacancies that may happen” means only those openings that arise during the recess, not those that already exist when the recess occurs.

Taken together, the rulings “all but strip the president of his constitutional power to make recess appointments,” said Alexander M. Wolf, a law student who recently published a lengthy study of the recess clause in the Fordham Law Review.

The clause was written at a time when it could take weeks for senators to get to the Capitol. But partisan gridlock has made it an important tool for presidents who are trying to get their nominees past a recalcitrant Senate.

The pro forma sessions were pioneered by Senate Majority Leader Harry Reid (D-Nev.) to thwart nominees of President George W. Bush. Now it is Republican senators who have filed a brief with the court saying justices should also consider the question of pro forma sessions that the D.C. Circuit bypassed.

“The president’s claimed authority to name principal federal officers without the Senate’s consent while the chamber has declared itself in session has no basis in the Constitution,” said the brief filed by all Republican senators.

Elwood, a former Bush administration Justice Department official who favors a broad definition of the president’s appointment power, thinks it likely that the Supreme Court will add the question of pro forma sessions and take the case, National Labor Relations Board v. Noel Canning.

The court declined review in 2005 when the U.S. Court of Appeals for the 9th Circuit interpreted the recess clause directly contrary to what the D.C. Circuit held this year. But in this case, both sides are asking the justices to step in.

The various lower-court decisions show there is more than one way to interpret “the” and define “happen.”

Even George Washington’s carriage problem is ambiguous.

The administration cites Washington’s letter stating that he would not be able to come to New York during “the recess” of the Constitutional Convention of 1787 to show he was referring to an intrasession break of the convention.

But lawyer Noel J. Francisco, representing Noel Canning, told the court in the company’s petition that George Washington’s words must be taken in context.

“I had put my carriage in the hands of a workman to be repaired and had not the means of mooving during the recess but with, or the curtisy, of others,” Washington wrote.

Wrote Francisco: “Plainly, the future first President was not engaging in legal analysis.”

For previous High Court columns, go to washingtonpost.com/fedpage.

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