THE BLOG

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Douglas Kmiec Headshot

Making Mischief with Recess Appointment Authority -- The DC Circuit Adds New Ways to "Just Say No"

Posted: Updated:

President Obama won re-election because he understands that the time in which we live demands action - on limiting gun violence, immigration, tax fairness, irresponsible dependency on carbon-based fuels, and an unceasing number of economic crises. Most of these economic "crises" are entirely of the Congress's own making, but the harms and losses they trigger are felt by real people attempting to make their way in the world for themselves and their children.

Again, there are few political figures better than the President who understand the price of economic dislocation on the American middle class and the Republicans have little chance of recapturing the American spirit so long as they remain the principal aiders and abetters of callous economic indifference -- and it really doesn't matter if that indifference is the product of the aloof philosophical abstractions of libertarianism or an economic theory drawn on a napkin that should have headed for the landfill of exhausted ideas years ago.

In President Obama's first term, the Republican leadership in Congress found repeated ways to say "no," or to act only at the last minute when U.S. and individual interests were already damaged. Now, thanks to a highly questionable ruling by the U.S. Court of Appeals of the District of Columbia, the Congress has acquired a new weapon of negativity -- the virtually unchecked ability to block the appointment of personnel. Thanks to a truly disappointing disregard of stare decisis, the U.S. Court of Appeals has engaged Justice Scalia's personally-discredited pretense of originalism to deny the President's well established recess appointment authority and thereby defeat the enforcement of all manner of existing laws, including some important new ones that in the wake of the 2008 financial scandal a majority of Congress, itself, thought essential to protect consumers.

The appellate panel's opinion will no doubt be reviewed either en banc or by the high bench, but for now it is one remarkably retrogressive and destabilizing interpretation of the Constitution's appointment clause. In times past, Presidents were presumed to be entitled to their own team, so the Senate showed special deference to executive nominees. Hamilton explained that the Senate confirmation role was intended as a protection against rank partisanship; it was not meant as a clog. Today, unfortunately, even highly capable men and women named to be judges are the frequent target of filibusters leaving ever more work in the courts undone.

The framers anticipated some of this back and forth, but they wanted ambition to check ambition, and so they also provided a means to keep the naysayers from blocking the policy of the political party that achieved majority approval at the last election. Civility in politics would be a wonderful thing to restore and I have shared some ideas on this with the White House, but the Constitution is actually so well designed -- if fairly interpreted -- that the elected President and executive administration is not consigned to prayer and pleading to be about the people's business. In particular in this context, the founders gave the President the practical power of self-help when a vacancy occurs while the Senate goes into recess leaving a post vacant not as a result of a presidential failure to nominate or even an honest disapproval of the president's choice, but because of deliberate gamesmanship of the filibuster variety and other holds and delays that frankly mar the reputation of the Senate as the greatest deliberative body.

Every President since Washington has relied on the recess appointments power, and while legislative members sometimes denounced reliance upon the power to "cut them out," in truth, whether recess authority would be looked to by a president was almost entirely within the conscious planning of the Senate, itself. If the Senate held timely hearings, the Senate's voice would never be left out.

The D.C. Circuit's crabbed understanding of the recess authority helps neither the President nor the Senate. Throwing over a century of case law, the panel of D.C. judges would limit the President's authority to the pure happenstance that it occurs precisely within a recess, rather far more responsively to its announced purpose to address the broader run of vacancies that happen to exist going into the recess.

Those who have been recess appointed in the past have been anything but lackluster. Chief Justice Earl Warren and Associate Justice William Brennan, for example, both were initially recess appointed (a recess appointment lasting only until the end of that session).

But entering the stage from some federalist society law clerk's far right wing location out of touch with modern understanding and need, the DC Circuit has unhappily yielded just another Republican way to get nothing done. Contrary to the decisions of other courts as well as legal counsel opinions for former Democratic as well as Republican presidents, the D.C. Circuit abandoned the reasonable view that the Senate is in recess if its gone at least three days even when it leaves a single member behind to take in the mail.

An agent or even a sole Senator cannot do what the Constitutional text requires: the full Senate's up or down assessment of a nominee. Not surprisingly, courts around the country had accepted this functional definition of recess - until that is, the D.C. Circuit invented another way for Republican lawmakers to cripple the government "of the people." This puts the DC Circuit at odds with other federal courts and the Bush administration which agreed with the position taken by President Obama.
For a good long time, I accepted the claim that Republicans were genuinely committed to defending founding principle and original understanding. I was not always certain that 18th century thinking fully grasped the issues of the 21st century, but at least the method seemed objective. As noted, the invention of a non-militia gun right put that belief at end, and this errant opinion follows right along.

Getting this right is not rocket science. The Senate is either in recess or its not. The pro forma sessions should be understood for what they are: sessions of the Senate that last less than a minute; where no businesses is conducted and where the actual recess of the Senate is not at all interrupted. These pro forma sessions are fundamentally at odds with the original understanding of the Constitution which provided that either the Senate had to be in session in order to do its job evaluating executive and judicial nominees or it had to be out of session in which case the authority given to the president to make recess appointments would apply. This was the view of Joseph story and it is the view that makes most sense.

Over a century ago, a senate judiciary committee report put it this way:

"It was evidently intended by the framers of the Constitution that ["recess"] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of Congress, or in extraordinary session for the discharge of [] functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments." (S. Rep. No. 58-4389, at 2 (1905).

Pro forma sessions of the Senate are dangerous to democracy. Instead of enabling duly passed laws to be enforced, enforcement is now made tentative and uncertain, either because someone is missing altogether or the responsibility falls to an "acting" officer who by nature is not prepared to make decisions that require courage and judgment or to be responsive to the President's program. How is it the Republicans favor a unitary executive only when it's them?

Of course the Senate has ample means by which to actually impose discipline on the executive should the executive attempt to use recess authority to circumvent the legislative will. Since the executive gets all of its money from Congress it is eminently possible for the Congress to reduce or eliminate funding for particular programs or agencies as a way of conveying its displeasure with a president who appoints in a manner that consistently evades the Senate's authority. But there is no evidence that President Obama is disregarding the Senate's legitimate prerogatives.

Having few ideas of one's own and repeatedly finding a way to deny Democratic action to meet modern day problems can hardly be claimed as a Senatorial privilege -- which, of course, it is not.