I hate to seem like a one trick pony, but this another post on the
Recess Appointments Clause. It is prompted by Mike
Greve’s post in defense of the modern practice on recess appointments. Mike writes:
I
do think important interests are at stake . . . The Constitution sets
up rival, competing institutions—and, as a practical matter, compels
them to cooperate. Sometimes, it prescribes the mode: bicameral
approval, presentment (veto, override). On a million other things, it
does not. When coordination problems prove recurrent, the institutions
will work out some mutually acceptable practice. Some practices shift
and change over time; others become deeply entrenched. But so long as
they work tolerably well and don’t violate the Constitution more or less
plainly (and yes, that’s a matter of judgment), it’s rarely a good idea
to upset them. The practice serves some institutional function
and demand. When it’s ruled out of bounds the institutions will have to
find some other coordination mechanism. That’s always costly. It may be
unsuccessful. And it may well be worse than what went before. Before
running those risks (in the name of originalism or for other reasons),
we should make quite sure that we’ve got it right.
This is an important objection – and it is held by many people – but I believe it is mistaken. It is worth pointing out why.
There
is, of course, a formal – that is, originalist – response to Mike’s
point (which he references when he says the practice doesn’t “violate
the Constitution more or less plainly). If one looks at the D.C.’s
opinion (and even more persuasively, if you will permit me to say it, my
article), I think it is plain that the modern practice is unconstitutional.
But
there is also a functional – that is, a public policy – response to
Mike’s defense of the practice. Mike makes the conservative point that
the existing practice, no doubt, serves important interests of the
different branches – we just don’t know exactly what they are. But they
were worked out by the beneficial process of adjustment and
coordination.
Scholars
have analyzed this process of mutual adjustment in the separation of
powers context. They have analyzed it in terms of the Coase Theorem.
If the initial assignment of powers is inferior from the different
branches’s perspective, then they will enter into an implicit contract
that rearranges the assignment to their mutual benefit. Based on the
Coase Theorem, the new arrangement will leave the different branches
better off. So what is the harm?
The problem is that the
different branches are not the only ones affected by this deal. There
is also a third party – the people – who are potentially harmed by it.
In
the case of the recess appointment tradition, one might infer that the
Senate has traded its power of advice and consent to the President in
exchange for something else. We don’t really know what it gets in
return. One possibility is that the Senators don’t have to make
difficult votes on controversial nominees that might harm them
politically. After all, the Congress often delegates power when they
want to avoid responsibility. In the modern era of minority
party filibustering of nominations, the recess appointment power may
allow the Senate to avoid having to engage in a divisive debate about
filibuster reform, which might leave the filibuster weaker and
individual Senators less powerful.
Notice, though, that these
trades benefit the Senators but do not provide obvious benefits to the
people or the republic. But in all cases what the trade does is to
undermine an important check – the constitutional requirement that
Senate decide on whether officers should be appointed.
The bottom
line is that there is not a good reason to believe that the practice of
recess appointments serves the republic and quite a few reasons to think
it does not. By striking down that practice, the courts can help to
force the Senate to serve its job as a check on potentially abusive
executive power.
(Cross Posted at the Liberty Law Blog)
Posted at 7:30 AM