At Constitution Daily, Podcast: A debate over presidential appointment powers, featuring Elizabeth Wydra (Constitutional Accountability Center) and me, moderated by Jeff Rosen. The other two participants are outstanding — Jeff Rosen plays the moderator so well I could not figure out what he thinks about the case, although I have a guess.
Three thoughts on the debate:
(1) I am even more persuaded that this case is about giving the President a way around the Senate's decision not to confirm a nominee. That is the point Elizabeth Wydra pushes, overtly and by implication, throughout her remarks. But, as the Justices noted in the argument excerpt I posted earlier, that has nothing to do with the recess appointments clause. It wasn't the point of the clause, and if you think the President needs that power, your conclusion has nothing to do with recesses — the clause is just a fortuitous hook to insert a power into the Constitution that isn't there, and in fact is contradicted by the Constitution's ordinary rule on appointments.
(2) For the most part the arguments on the other side were fair and I had a chance to respond, but I wasn't able to find time to respond to this one, which is minor but annoying. A common talking point, repeated in the podcast, is that George Washington made recess appointments to positions that became vacant during a session. He did not, at least not in any way that helps the modern President's position. The Solicitor General's brief in Noel Canning claims he made two. But in describing these two appointments to the Senate, Washington said they had been made to offices that became vacant during a recess (cites at pp. 21-22 of this brief). Perhaps Washington was misinformed (or lying) but in any event his public position does not support a broad view of the President's power. Indeed, no President (or, as far as I know, any one else) prior to 1823 publicly took the position that the President could make recess appointments to offices that became vacant during a session.
(3) Toward the end of the podcast, Jeff Rosen asks me what I think of the argument that the Senate was actually in session during the Noel Canning appointments because it was holding a pro forma session, and the Court should defer to the Senate as to whether it was in recess or not. I give a half-hearted defense of this position, consistent with my role in the debate, and then say what I really think, which is that this argument is weak and sort of embarrassing.
It true that the Constitution (Art. I, Sec. 5) gives the Senate (and the House) power to "determine the Rules of its Proceedings". But this shouldn't include the power to redefine constitutional terms. If the Senate adopted a rule, for purposes of approving treaties, that consent by a majority vote shall be deemed consent by two-thirds, we would not think Art. I, Sec. 5 required judicial deference to the way the Senate defined "two thirds." Similarly, if the recess appointments clause did (contrary to my view) allow the President to make unilateral appointments whenever the Senate was not conducting business for three days (because that is a "recess"), we should not allow the Senate to declare that it is conducting business when it isn't. The Senate can't use its Article I, Section 5 power to redefine "recess" any more than it can use it to redefine "two thirds." And making the case turn on the pro forma session turns the whole thing into a constitutional subterfuge instead of a reading of the text.
At some point, though, we are going to have to move on from recess appointments…
Posted at 6:21 AM