How the Supreme Court Can Sidestep a Recess-Appointments Dilemma

Miguel Estrada, a conservative icon denied a judgeship by a recalcitrant Senate, may have just saved Senate recalcitrance.

The first question to Estrada at the Supreme Court Monday was put by Justice Elena Kagan, his Harvard Law School classmate. (“Miguel and I were required to sit next to each other in every single class in the first year,” Kagan told Senator Lindsay Graham during her confirmation hearings. “I can tell you Miguel takes extraordinary notes .... I think he is a great lawyer and a great human being.”) She smiled as she watched her old friend deliver one of the most dazzling arguments the marble chamber has heard in many years. 

His mere presence, in a way, was the most powerful argument made Monday. The brilliance of his words left little doubt in any observer’s mind that Estrada would be not at the lectern but on the bench—perhaps even in the seat occupied by Chief Justice John Roberts—if the Senate’s Democrats had not filibustered his nomination to the D.C. Circuit in 2001.

The case being decided is National Labor Relations Board v. Noel Canning, a test of the president’s “recess appointment” power under Article II § 2 cl. 3 of the Constitution. That clause provides that 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.” “Recess appointments” provide the only exception to Article II’s rule that the president must obtain the “advice and consent” of the Senate before naming “Ambassadors, other public ministers and consults, Judges of the Supreme Court, and all other officers of the United States.” 

Since the dawn of the republic, these 30 short words have baffled presidents, senators, and attorneys general. Beginning in the Washington Administration, they have pondered two questions:

1. Does “happen during the Recess of the Senate” limit use of the power to filling jobs that become vacant while the Senate is in recess? 
2. What does “the recess of the Senate” mean—only the formal break between one two-year term of the Senate and the next, or any time when the body closes for business for more than a few days?

The Supreme Court has never weighed in on either question, even though presidents beginning with Washington have filled hundreds of vacancies by “recess appointment.” Usually recess appointees are confirmed when the Senate meets next, even if that takes some negotiation between the president and reluctant senators. But the past 20 years have seen an explosion of filibusters (like the one used to keep Estrada off the bench) and other tactics designed to prevent presidents from putting their policy stamp on courts or executive agencies. 

Senators don’t want to stay in session all the time. If they leave town, however, the president may seize the chance to appoint officials whose nominations have been bottled up for weeks, months, or years. Senate Democrats, when they took over the Senate in 2007, found a stratagem to block President George W. Bush from using his recess power—they simply declared that they would hold one-minute “pro forma” sessions every three days. There would be no “recess” to trigger the power.

That 2007 dispute arose over Bush’s plans to install conservative nominees at the National Labor Relations Board, the most important agency to labor unions. When Barack Obama became president, Senate Republicans returned the filibuster favor, blocking Obama’s nominees; eventually the NLRB had to cease operations for lack of members.

By 2011, the administration was ready to use the recess power; Senate Democrats would have been glad to adjourn, clearing the way. But Article I § 5 cl. 4 says that neither House can adjourn for more than three days “without the permission of the other.” The Republican majority in the House refused the Democratic Senate permission to adjourn; so began the latest round of “pro forma” sessions. Obama denounced the sessions as a sham and named a full complement of members to the NLRB.

The newly constituted board began issuing orders in labor disputes, including one against Noel Canning, a Pepsi bottling plant in Yakima, Washington. The company contested the order, saying the “board” that issued it wasn’t legal.

The D.C. Circuit, in an opinion by Judge David Sentelle, deployed what I call “the Full Vizzini,” after the sinister mastermind played by Wallace Shawn in The Princess Bride, who introduces himself by saying, “Have you ever heard of Plato, Aristotle, Socrates? Morons.”

Figures such as Jefferson and Madison had puzzled over the clause. Morons! Sentelle simply looked up the word “the” in a 1754 dictionary and concluded that there can only be one “recess of the Senate” per Congress; thus presidents can only make recess appointments once every two years, during the nanosecond between the end of one Congress and the next. And beyond that, he said, the phrase “may happen” can only mean that the vacancies themselves must occur when the Senate is in “the recess.”

In other words, by the time Vizzini had finished with it, the clause was all but useless.

Luckily, the Court on Monday seemed eager to find a different way to settle the dispute. One way of construing an ambiguous constitutional phrase is what lawyers call purposive—applying it to achieve what you think its drafters were aiming at. To Noel Francisco, representing the company, the purpose is to make Congress stronger and the president weaker. To Solicitor General Donald Verrilli, on the other hand, it’s there to empower the president when Congress is obdurate or irresponsible.

History doesn’t really support either reading: The main reason for the clause seems to have been to allow interim appointments when members of Congress traveled long distances by horse or foot to assemble once a year. Justice Elena Kagan noted that “there's no such thing truly as congressional absence anymore. And that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.”

The president's party controls the Senate. If the Senate wanted to recess, Rule 22 of the Senate says that's not a debatable proposition .... So the Senate says, which is controlled by the president's party, says, we want to recess, we want to go away, we don't care if the president has this power. They vote for that. House says no. What happens then? Article II, Section 3 of the Constitution, the fight goes to the president, and it is in that event that the president gets to adjourn them until such date as he shall see proper. So if the Senate had any view that it wanted to recess, they could have had a vote, and the issue would have ended up in the White House, in the lap of the president .... And for all that we hear about today, which has to do with how the heaven will fall, and the parade of horribles, there is no parade, and there is no horrible. The only thing that will happen is that the president, heaven help us, will be forced to comply with the advice and consent that the ... Appointments Clause actually calls for. 

Remember that the NLRB appointments were back in the pre-“nuclear option” days when Senate Democrats were still reluctant to fight. If they’d been willing to confront the House bullies, Estrada was saying, they could have forced a crisis that would have created a real recess. Obama could have made his appointments. We could all be doing something else. But they didn’t, and now they want the Court to clean up the mess.

So effective was Estrada that I am willing to predict the Court will simply hold—probably by a lopsided margin—that, in his words, “the Senate gets to decide whether the Senate is in recess.”