Yesterday, the Supreme Court heard argument in the Recess Appointments Case. According to reports, the argument did not go well for the government.
As someone who has spent considerable time reading the Executive Branch’s jurisprudence in this area and felt like he was walking around in Alice’s Wonderland, it was refreshing to see the skepticism expressed by some of the Justices:
Both Justice Ginsburg and Justice Kennedy told Don Verrilli that the government’s argument – which would allow recess appointments during any break, not just the ones between sessions – needed a “limiting principle,” to prevent the president from making recess appointments even during very short breaks.
And even Justice Ruth Bader Ginsburg, who has been the leader of the Court’s liberal wing since Justice John Paul Stevens retired in 2010, observed that these days “the Senate is always available” because it can be “called back on very short notice.”
Justice Elena Kagan suggested that the clause was in fact a “historic relic,” as recess appointments are now primarily deployed to deal with “congressional intransigence,” rather than emergencies. “This is not,” she noted, “the horse and buggy era anymore.”
And it was interesting to see Justice Scalia, who formerly headed the Office of Legal Counsel, appear to take a strong position in favor of the original meaning:
Justice Antonin Scalia, who places a premium on adhering the text of the Constitution as it was originally understood, left little doubt that he was not concerned about the discrepancy [between the Constitution and the practice], asking sarcastically whether, if you ignore the Constitution often enough, the meaning can change?
And:
[The Clause] has been assumed to be ambiguous by self-interested presidents.
Of course, you can never be sure how a case is going to turn out from the argument, but it was nice to see some of the government’s arguments taken to task.
(Cross posted at Liberty Law Blog)
MIKE RAMSEY ADDS: The transcript of the argument is available here. Josh Blackman has a series of posts at his blog highlighting key points (starting here, but they keep coming).
I think this discussion is particularly insightful, and devastating:
JUSTICE KAGAN: General, would you agree that this clause now is not mostly used to deal with emergencies arising from congressional absence? That most modern Presidents –and I say this sort of going –going back to President Reagan, Presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved?
You know, absence in this day and age – this is not the horse and buggy era anymore. There's no real –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.
GENERAL VERRILLI: Well, two answers. I don't think its original purpose has disappeared. I mean, the NLRB was going to go dark. It was going to lose its quorum.
JUSTICE KAGAN: Yes, as a result of congressional refusal, not as a result of congressional action.
GENERAL VERRILLI: And that gets to the second point, which is that it may be true as a matter of raw power that the Senate has the ability to sit on nominations for months and years at a time, but that is 100 miles from what the Framers would have expected. If you look at what Hamilton said in Federalist 76 about the advice and consent role of the Senate, he said he thought it would be a power that was rarely exercised and would operate, if at all, invisibly or silently. And in the early days of the Republic, it was –advice and consent was a matter of days.
JUSTICE ALITO: But you are making a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not. You're just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the President must be able to fill those — fill those positions. That's what you're arguing. I don't see what that has to do with whether the Senate is in session.
GENERAL VERRILLI: Well, I do — I think this — I think the recess power may now act as a safety valve given that intransigence, and that is actually quite consistent —
JUSTICE GINSBURG: But it isn't — it isn't tied then to the availability of the Congress, availability of the Senate. I think you said throughout your brief that the rationale for the recess power is the President must be able to have the government functioning and staffed even though –although the Senate isn't — isn't around. But now the — you seem in your answers to be departing from the Senate not available and making quite another justification for this.
The Senate, I think to be candid, the Senate is always available. They can be called back on very short notice. So what is it that's the constitutional flaw here? It isn't — it isn't that the Senate isn't available. The Senate is available. It can easily be convened.
GENERAL VERRILLI: So let me take a half a step back, if I could, Justice Ginsburg, and answer that question in this way. You know, perhaps it sounds like this is an aggressive assertion of executive authority, but I'd ask the Court to think back to Federalist 51. And what the Framers were most concerned about was that Congress, in the separation of powers calculus, was going to amass authority and drain authority and energy from the Executive, and therefore, the Executive needed to be fortified against those actions by Congress.
And one specific way in which the Framers decided to fortify the Executive was by rejecting the notion that the appointment power should reside with the Senate. The Framers considered that and they rejected it. And the reason they rejected it, as this Court noted in its Edmund opinion, was — was to protect the Executive against encroachment by the legislature.
CHIEF JUSTICE ROBERTS: But the compromise they settled on in moving away from that is that the President will nominate and the Senate, if it so chooses, can confirm a nominee. You spoke of the intransigence of the Senate. Well, they have an absolute right not to confirm nominees that the President submits.
And it seems to me, following up on Justice Kagan's point, you're latching on to the Recess Appointment Clause as a way to combat that intransigence rather than to deal with the happenstance that the Senate is not in session when a vacancy becomes open.
Posted at 8:00 AM