The federal confirmation process seems pretty straightforward: the executive branch nominates officials to fill judicial and administrative vacancies; the Senate offers its advice and consent. Of course, it’s not as simple as it sounds, especially in an era in which a Senate minority can overrule a Senate majority by abusing filibuster rules.
The executive, in theory, has a workaround called recess appointments. In fact, Article II, Sec. 2, of the Constitution says, “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.” Note that it says, “the recess,” not “a recess.”
In the early days of the country, framers saw recesses that could last months and wanted presidents to be able to fill key positions temporarily in emergency situations without the Senate’s consent. There’s a lengthy break following the final adjournment for the legislative session, and this is generally considered “the recess.” The provision was not about giving presidents the authority to circumvent Congress when the White House felt like it.
As you might imagine, this has long been a point of contention between the branches, with presidents defining “recess” however they saw fit. More than a century ago, Teddy Roosevelt once made recess appointments when the Senate was off for an afternoon.
In the Obama era, congressional Republicans have decided they won’t just block nominees through filibusters, making it impossible for some agencies to function, but also that there will no longer be any recesses at all, so the president’s constitutional power to make recess appointments has effectively been eliminated.
How? Through the use of brief, pro-forma sessions – sessions in which the Senate isn’t actually in session, but it’s technically not in recess. Obama’s Justice Department and the Office of Legal Counsel said the president need not honor the charade and can make recess appointments when the Senate is effectively in a recess.
And last month, a federal appeals court disagreed, issuing a sweeping ruling that said recess appointments are all but impossible – the vacancy has to occur during a recess, and if Congress is going through the motions of pro-forma sessions, a president is just out of luck.
We can debate whether the court ruling was right on the merits – I’m of two minds on the subject myself – but even if we put that aside, there’s a pressing question that’s causing some alarm: if recess appointments are legally impermissible, what about all the policy decisions that have been made by officials who were in their posts by virtue of recess appointments?
Or more to the point, if those officials weren’t supposed to be on the job, are all of their actions null and void?
Brian Beutler had a good piece this morning on the consequences of the Noel Canning v. NLRB ruling.
The Congressional Research Service turned back the clock to the beginning of Ronald Reagan’s first term and dug up all the recess appointments they could find in the ensuing 32 years. Hundreds of recess appointments – by Presidents Reagan, H.W. Bush, Clinton, W. Bush, and Obama – would have been unlawful exercises of the recess appointment power had the new appeals court decision been in effect at the time, the CRS found in a memo dated Monday and released by Democrats on the House Education and the Workforce Committee, who requested the research.
The lawsuit dealt specifically with appointments to the National Labor Relations Board, and as far as conservatives are concerned, the decisions made by officials Obama appointed to NLRB have to be reversed – they shouldn’t have been on the board, so their decisions shouldn’t count.
But if that’s true, every policy decision reached by a recess-appointed official, all of whom were ineligible for their posts under the appeals court’s Noel Canning v. NLRB ruling, would also have to be considered invalid.
For Obama, that would cast doubts on the work the Consumer Financial Protection Bureau has already done on behalf of Americans, but let’s not lose sight of the scope – there were over 300 other inter-session recess appointments in recent decades that, according to the appeals court, were legally impermissible.
That would include, by the way, some judges who issued rulings after receiving a recess appointment. Are those rulings still valid? If those judges sentenced criminals to prison, will new trials be required in each case?
Noel Canning v. NLRB is, not surprisingly, being appealed again to the U.S. Supreme Court. To put it mildly, the outcome of the case will have quite an impact.