Top Lawyers Debate Fate of Obama Recess Appointments

Last month, the National Labor Relations Board asked the Supreme Court to review an appeals court ruling invalidating President Obama’s 2012 recess appointments to the board and the Consumer Financial Protection Bureau. On Thursday, top lawyers told an American Bar Association panel that the high court is likely to accept the case, which has major implications for agency management, administrative law and political tensions between the executive and legislative branches.

“The Supreme Court has never come to grips with this issue, and I wouldn’t be surprised if it does so soon,” said Charles Cooper, a Justice Department veteran now chairman of Cooper & Kirk, and who is fresh from arguing a high-profile case against same-sex marriage before the Supreme Court.

Cooper presented arguments attacking the constitutionality of Obama’s recess appointments at an American Bar Association Administrative Law and Regulatory Practice Institute gathering in Washington.

The debate played off the January 2013 ruling by the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB, which declared invalid Obama’s appointments -- while the Senate was in pro forma sessions during the Christmas holidays -- of Richard Cordray as director of the Consumer Financial Protection Bureau, and NLRB members Richard Griffin Jr., Sharon Block and Terence Flynn. The arguments conjure two centuries of tensions between the executive and legislative branches, the definition of a recess, and the president’s powers to keep agencies fulfilling their responsibilities in the face of blocking tactics by a minority in Congress.

Cooper defended the appeals court ruling by arguing the Constitution allows Congress to establish its own rules for determining when it is in session -- even when, by agreement with the House, the Senate during the holiday break has since 2007 held pro forma, three-day sessions to head off presidential recess appointments. In bypassing the Senate, he argued, the president would use “the recess clause to effectively swallow up the appointments clause.”

The Constitution’s “plain language” mention of “vacancies that may happen during the recess,” he argued, for most of the past 200 years has been interpreted as referring to vacancies “that arise” during the recess, in contrast to vacancies Obama had been seeking to fill for a year or more. The assertion by Obama’s Justice Department Office of Special Counsel that the Senate is “unavailable” to the president “collapses under the inconvenient truth” that the Senate during its “pro forma” session in December 2012 actually passed a law, one that extended the Social Security payroll tax cut. “How could it be in session for some purposes but not for others?" Cooper asked.

Peter Shane, law professor at Ohio State University who formerly worked in the Justice Department’s Office of Legal Counsel, called the appeals court ruling “textualism at its most amateurish,” and cited 20th-century Supreme Court notions of “postulates that limit and control” such literal readings of constitutional language. The Founding Fathers’ use of “vacancies that may happen during the recess” has long been viewed as vacancies over a period of time, with “the recess” being generic, he said, just as the phrase “the wine is the best part of the meal” does not refer to a single bottle of wine.

Discussions of a need for emergency recess appointments in the 18th Century may have stemmed from the Founding Fathers’ vision of lawmakers having left town to “return to their shops and farms,” Shane said, “but why should we be bound by their mental picture?” The Senate’s confirmation power was a check on corruption and favoritism, and the founders wouldn’t have recognized the partisan tactics, Shane said. The Constitution clearly intended the president, he continued, to be the leader in making appointments, and Congress’ authority to make its own rules applies only to its own business, not to aggrandizing its authority over the executive branch. “The Senate can’t abuse the confirmation process and make Senate intransigence a kind of virtue” to create a “disabled executive,” he added. Obama’s recent comment that he “wouldn’t take no for an answer” regarding his nominees referred to a demand for a Senate vote, not a challenge to its authority to reject his nominees, Shane said.

Renee Landers, law professor at Suffolk University in Boston, reviewed what’s at stake for the agencies and their rule-dependent constituencies in the coming decision. “It’s a litigation challenge for the NLRB,” she said, citing 600 board rulings that could be invalidated because the board members deciding them were not rightfully appointed, plus 33 cases in abeyance, and the status of 10 regional directors unclear. At the CFPB, she noted that two major rulings are in limbo for having been implemented by acting director Cordray. One is a qualified mortgage rule and the other a ruling on overseas electronic funds transfers. The uncertainty, she added, “may hinder third parties from using the regulations” under the Truth in Lending Act.

The Supreme Court, she summarized, could uphold the appeals court ruling and invalidate the recess appointments, or it could back such recess appointments, as three other circuits have. Or it could follow some case law that has permitted agencies such as the Federal Election Commission to preserve rulings from invalid appointees, or it could allow the Treasury Department to issue the CFPB rulings.

“It would be better,” Landers said, “if the president nominates and the Senate confirms candidates. Administrative law is often a proxy for political battles over the value of regulatory programs.”