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The recess appointment power: a slow-motion train wreck

Apr 22, 2013, Vol. 18, No. 30 • By JEFF BERGNER
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On January 25, the D.C. Circuit Court of Appeals ruled that President Obama did not have the constitutional authority to make recess appointments for three new members of the National Labor Relations Board (NLRB). It concluded unanimously that the president had no authority to make recess appointments during intra-session breaks of the Senate, and further that recess appointments can be made only for positions which come open during that same recess. The court vacated the many decisions that the NLRB made during the year between those appointments (January 4, 2012) and the date of its ruling.

Sam Fox in Belgium, 2008

Sam Fox in Belgium, 2008

Newscom

The Obama administration has decided to appeal this sweeping decision to the Supreme Court, and its petition for certiorari is due by April 25. Because appeals courts have ruled differently from one another on this issue, because 30 additional cases are pending in all but three of the federal circuits, and because the executive branch is seeking a decision, there is a high likelihood the Court will accept this case.

The recess appointment power has strained relations between the Senate and the executive branch off and on for years. These strains have been papered over on many occasions. What has caused this now to become a case in which the Supreme Court might intervene to resolve a longstanding issue between the legislative and executive branches? It is the story of a slow-motion train wreck.

THE FOX NOMINATION

The story begins with the nomination of Sam Fox to serve as U.S. ambassador to Belgium in 2007. Sam Fox was a successful and well-regarded St. Louis businessman, civic leader, and philanthropist who made a fortune estimated at a billion dollars from scratch. He was a demonstrably capable man, and the post for which he was nominated has often gone to wealthy donors of the president’s party. To put it politely, few nettlesome issues have marred the U.S.-Belgium relationship in recent years, and Fox was as qualified as any past political nominee to serve in this post.

What went wrong was that among Fox’s many contributions to Republican causes was a $50,000 donation to Swift Boat Veterans for Truth. The Swift Boat Veterans had run campaign spots against John Kerry in the 2004 presidential campaign, ads whose impact was hard to measure but which clearly were not helpful to Kerry’s electoral prospects.

Unfortunately for Fox, John Kerry was still sitting as a senior member of the Senate Foreign Relations Committee, which had jurisdiction over his nomination. At Fox’s hearing on February 27, 2007, Kerry grilled him about his contribution to the Swift Boat Veterans. Fox was unapologetic; he said that persons in his position often make numerous contributions and this was but one that he had been asked to make.

In the weeks between the hearing and a committee vote, Senator Kerry reached out to his Democratic colleagues on the Foreign Relations Committee asking for their support in opposing the Fox nomination. Because Democrats held an 11-10 advantage at that time, their unified opposition to Fox would kill his nomination. Kerry’s argument was that in donating to the Swift Boat Veterans, Fox had displayed “poor judgment,” which disqualified him from serving as ambassador. All Democrats on the committee lined up in solidarity with their colleague to oppose the Fox nomination.

A committee vote was scheduled for the morning of March 28. The afternoon before, my staff and I conducted a conference call with several members of the White House legislative staff. What were our options? Could we turn any Democratic votes? No, they were solidly behind Kerry. Would all members show up for the vote? Kerry held the proxy votes of all the senators who couldn’t attend. In short, there was no way to win. It was the consensus of everyone on the call to ask the president to withdraw the Fox nomination, to avoid an embarrassing loss for himself and the nominee.

I waited the following morning for a letter from the White House withdrawing the Fox nomination. It arrived shortly after 10 a.m., and armed with the letter we jumped in a car and headed to S-116, one of the committee’s rooms in the Capitol, for the scheduled 11 a.m. committee meeting. When Chairman Joe Biden and ranking Republican Dick Lugar arrived a few minutes before 11, I asked if I might speak to them about the Fox nomination. Biden volunteered that the committee intended to hold a separate vote on the Fox nomination, and that the other non-controversial nominations would be approved en bloc. I handed the president’s letter to Biden and explained that the president had withdrawn the Fox nomination. Not only was there no need for a vote on Fox, technically the committee could not vote on the nomination because it was no longer before the Senate.

After a moment’s reflection, both Biden and Lugar seemed satisfied with this news. It would, after all, spare the committee an unpleasant and contentious straight party-line vote. Biden then approached Kerry and explained the situation to him. Kerry also seemed content with the news, thinking that he had successfully blocked the appointment. When Biden convened the meeting, he announced that Sam Fox’s nomination had been withdrawn by the president and that his name would be removed from the agenda. The committee then voted to confirm the remaining nominees and passed several uncontroversial resolutions. The meeting was over in 15 minutes.

What Kerry apparently did not understand at the time was that this was only the first act of a two-act drama. It did not take long for the curtain to rise on the second act. The Senate took its spring break the following week, and during its recess President Bush appointed Sam Fox ambassador to Belgium on April 4. Democratic senators went into high dudgeon. “Unfortunately, when this White House can’t win the game, they just change the rules, and America loses,” said Kerry. Senator Barack Obama, already on the presidential campaign trail, said, “It’s disappointing that President Bush would defy the will of Congress by appointing Sam Fox ambassador to Belgium.” Senator Chris Dodd announced that he would seek a legal opinion. Dodd, Kerry, and Senator Robert Casey sent such a letter to the Government Accountability Office (GAO) on April 5. In its response two months later, the GAO agreed that Sam Fox was not entitled to a salary in his new post but declined to wade into the deeper constitutional issue, saying that an interpretation that prevented Fox from serving in a recess appointment “would raise serious constitutional questions.” A news article that appeared on April 9 noted that Majority Leader Harry Reid was considering various avenues to try to block President Bush’s ability to make recess appointments. One notion—of more than dubious constitutional standing—was to require the resubmission of the nominations of all recess appointments, thus making a Senate vote on Sam Fox once again in order.

In the end, none of these alternatives offered hope of success, and cooler heads prevailed—at least for the moment. As the next long break in August approached, President Bush and Majority Leader Reid came to an understanding: The Senate would confirm a number of nominees prior to the August recess in exchange for a promise from the president that he would make no recess appointments during the August break. That is just what happened.

PRO FORMA SESSIONS

As the next lengthy Senate recess approached, no such deal was reached. Harry Reid announced that during the November 2007 break, he would bring the Senate in for pro forma sessions every three days. These sessions, which lasted less than a minute, would be gaveled to order by a senator who happened to be in Washington and then just as quickly gaveled to adjournment. Reid was not coy about the rationale. The Senate, he said, was “coming in for pro forma sessions .  .  . to prevent recess appointments.”

Why every three days? Couldn’t the president make recess appointments during these three-day breaks? After all, the Constitution is silent—except by inference— about what is a “recess.” In 1993 a (Clinton) Department of Justice brief had suggested that the president could make recess appointments whenever the Senate was in recess for more than three days (Mackie v. Clinton, July 23, 1993). In practice, however, no president had made recess appointments during a Senate break of less than 10 days during the previous two decades. This was the standard adhered to by President Bush as well. It so happened that the April break during which Sam Fox was appointed was a 10-day interlude.

Were pro forma sessions a partisan tactic or a defense of the Senate’s constitutional prerogatives? As we shall see, Harry Reid provided one answer in 2009 and a more definitive answer in 2012. It is sometimes said that Republicans had earlier used pro forma sessions to head off recess appointments and that Reid was simply following suit. This is not true; the assistant Senate historian notes that while Republicans once threatened such a move, they did not employ it. Harry Reid is the only majority leader in the history of the Senate to call the Senate into pro forma sessions for the purpose of blocking recess appointments.

The Bush administration did not challenge the notion that the Senate was in session while in pro forma session and made no further recess appointments that were not agreed to by the majority leader. When President Obama took office in 2009, Reid suspended the use of pro forma sessions. President Obama made no recess appointments until March 2010 when—again during the spring break—he appointed 15 nominees. These included the controversial Craig Becker to serve on the NLRB. Becker’s nomination had failed to secure the 60 Senate votes necessary to overcome a filibuster and was stuck in the Senate. All 41 Republican senators sent a letter to the president urging him not to make a recess appointment of Becker. The president proceeded anyway.

In the fall of 2010, as the Senate was preparing to leave for the lengthy campaign season, Republican leader Mitch McConnell threatened to employ a little-used Senate rule to send all unconfirmed nominees back to the president. In order to avert this, Majority Leader Reid agreed to reinstate pro forma sessions in order to prevent the president from making recess appointments. This situation continued during subsequent Senate recesses.

All of this changed when President Obama announced on January 4, 2012, that he was recess-appointing three nominees to the NLRB as well as Richard Cordray to be the head of the new Consumer Financial Protection Bureau. The president’s urgency about NLRB appointees was motivated by the expiration of Craig Becker’s 2010 recess appointment on January 3, 2012. That would leave the NLRB without a three-member quorum to do business. For its part, the Cordray nomination was hopelessly deadlocked in the Senate.

President Obama suggested that pro forma sessions were a legislative gimmick during which the Senate did no real work. Interestingly, although the Senate order establishing the December 2011-January 2012 pro forma sessions stated that “no business [would be] conducted,” the Senate by unanimous consent passed a temporary payroll tax extension during the pro forma session on December 23. Also, the January 3 pro forma session fulfilled the constitutional obligation of the Twentieth Amendment to convene the second session of the 112th Congress. The White House Office of Legal Counsel argued that pro forma sessions, “through form, render a constitutional power of the executive obsolete.” Armed with this legal advice, President Obama ignored the pro forma sessions of the Senate and recess-appointed the three NLRB members and Cordray.

At this point Harry Reid, the architect of pro forma sessions, provided a definitive answer to the question of whether these sessions were a partisan ploy or a defense of Senate prerogatives. In a breathtaking 180-degree -reversal, Reid revealed himself as purely partisan, saying simply and without further rationale (indeed, what rationale could there be?), “I -support President Obama’s decision.”

GOING FORWARD

It is quite possible that if the Supreme Court takes this case, it will rule on grounds other than how many days the Senate must be on break to count as a recess. The Court might choose to follow the D.C. Circuit Court’s reasoning and put an end to intra-session recess appointments altogether, thus depriving the modern presidency of a tool it has used regularly for decades. It might rule that even during recesses between Senate sessions, only nominees who are filling positions that become vacant during those recesses can be recess-appointed. This would further restrict the president’s appointment power. It is quite possible, in other words, that the respective overreaching of Harry Reid and Barack Obama has set up a situation in which not George Bush retroactively but all presidents going forward are the real losers.

Whatever else, it would be fair to conclude that the current situation is the worst of all possible outcomes. This is true for several reasons. First, President Obama has arrogated to himself the power to judge when the Senate is in session and when it is not. It would be a surprising constitutional outcome if the executive were to be the one to decide when the Article I branch of government is doing “enough” to qualify as being in session. As the D.C. Circuit decision says, this would demolish a set of checks and balances and give “the President free rein to appoint his desired nominees at any time he pleases, whether this time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”

Second, with the establishment of pro forma sessions Harry Reid’s legislative cleverness has made a mockery of Senate procedures. There is no doubt that pro forma sessions are a gimmick designed to prevent recess appointments. Worse yet, in wanting to eat his cake and have it too, Reid has established two sets of rules, one for a president of his own party and one for a president of the opposing party. This is as clear a case of the rule of men, and not of laws, as one can imagine.

The outlines of an accommodation that would have prevented this case from going forward are clear enough. The majority leader and the president might have agreed to return to the status quo ante, and allowed a 10-day or greater break to count as a recess. Or they might have adopted a broader set of understandings to force cooperation between the branches. But now it is perhaps too late to put the genie back in the bottle. As the D.C. Circuit decision makes clear, it is very difficult to find a non-arbitrary, constitutionally mandated number of days which count as a valid time in which to make recess appointments. Despite much creative scholarship, there are no compelling constitutional grounds for choosing any particular length of time. The Court itself might privately believe that this decision would have been better left to the normal compromises of the legislative and executive branches.

We may be on the cusp of another decision like INS v. Chadha, which struck down the legislative veto. There, too, an argument was made that too much was at stake to invalidate recent practice; the legislative veto, non-existent in the early years of the republic, had become an important tool of governance in the twentieth century. So it is now said that recess appointments, nonexistent in the first eight decades or more of the republic, have become an important tool of the presidency at a time of numerous appointees, frequent Senate recesses, and bitter Senate partisanship. But the Court said in Chadha that “the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” If the Court feels compelled to act, not only the powers of the presidency but also the numerous decisions of the NLRB over the past 15 months will likely be casualties.

One would have to ask whether personal pique over a nominee to serve as ambassador to Belgium, and the ensuing display of self-serving partisanship, is worth all that.

Jeff Bergner is adjunct professor at Christopher Newport University. He served as staff director of the Senate Foreign Relations Committee and from 2005-2008 as assistant secretary of state for legislative affairs. He is grateful for the assistance of Bruce Brown, who served as deputy assistant secretary of state in 2007 and who coordinated State Department nominations at the time.

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