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Weak Justification for Executive Overreach

10:00 PM, Jan 12, 2012 • By ADAM J. WHITE
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Before 1987, Supreme Court nominations were relatively peaceful affairs. Yes, there occasionally were bursts of controversy—the appointment of progressive activist Louis Brandeis in 1916, the promotion of conservative Justice William Rehnquist in 1986—but controversy was the exception, not the rule. Justice Antonin Scalia, a known conservative commodity, was confirmed in 1986 by a vote of 98 to 0. ("The two missing were Barry Goldwater and Jake Garnes," Scalia later reflected, "so make it 100.")

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But the world of judicial confirmations changed irrevocably in 1987, when Senator Ted Kennedy and others rose up in full-throated opposition to the Robert Bork nomination, followed by the Democrats' intense scrutiny of Clarence Thomas and (hard as it is to believe today) David Souter. For a short time, Republicans declined to follow suit—they were far less heated in their opposition to President Clinton's nominees, Ruth Bader Ginsburg and Stephen Breyer. But even then, they began to escalate their opposition to lower court nominees.  

By the time we reached the Bush administration, and then the Obama administration, the once sleepy routine of judicial appointments had reached a state of constant war, all started with the first shots fired in the Bork nomination. 

Years from now, we may look at the past week’s controversy as the first shots fired in the next “confirmation war” — a war not over whom the president may appoint, but how he may appoint him.  President Obama’s unilateral appointment of the highly controversial Richard Cordray to the highly controversial Consumer Financial Protection Bureau, plus three others to the National Labor Relations Bureau, was an explosive assertion of expansive power: The power to unilaterally deem the Senate to be in "recess," and then unilaterally appoint even nominees who have plainly failed to secure Senate approval.

The Justice Department's new release of an Office of Legal Counsel ("OLC") memo belatedly endorsing the president's action does nothing to dissipate the tensions caused by the president's action. If anything, the OLC opinion only makes future confirmation wars all the more unavoidable, because of the bright-line test that it sets for whether the Senate is in "recess": The Senate is in recess when it "remains unavailable . . . to 'receive communications from the President or participate as a body in making appointments.'" That formulation of the standard is an open-ended recipe for disaster: is the Senate in "recess" on a long weekend? On a holiday?  At night?

The OLC, and the president's other supporters, would respond by saying that a recess occurs only when the Senate's "unavailability" extends for a long-enough period of time. But the opinion nowhere indicates what the shortest allowable time period is; it recognizes that a "recess" could be eleven days long, but offers no specific line beyond that. And in any event, examples of past recesses are irrelevant: By constructing this test as one of "unavailability," and giving the president inherent power to decide when the Senate is "unavailable," we can look forward to shorter and shorter president-designated "recesses." 

Delving more deeply into the memorandum's substance, OLC's analysis is, to be blunt, an exercise in question-begging. The memo is structured to assume the question at issue and reach an unsurprising conclusion.  

The issue in this controversy is whether the Senate was in "recess" for purposes of the Constitution's Recess Appointments Clause. The Senate, consistent with a longstanding understanding that adjournment of three days or less does not constitute "recess," has for several weeks reconvened for pro forma sessions in which one senator gaveled business open and closed. The question, then, is whether a series of these brief adjournments can be summed together to form a "recess."  

The OLC opinion, however, puts the cart before the horse, by first presuming that the period from January 3 to 23 was "an intercession recess of twenty days," and then asking whether that recess can be "interrupt[ed]" by a series of "pro forma" sessions. Structuring the questions that way, we all know the answer: If there is a "recess," then the president may make "recess appointments," and the Senate cannot otherwise take action to impede the president's exercise of that authority.

And that manner of question-begging drives the OLC opinion's cursory treatment of the arguments raised by the other side in this debate. Invoking various precedents and historical materials explaining the Recess Appointments Power, the opinion then concludes that the Senate's efforts to "prevent" the president's recess appointments would "raise constitutional separation of powers concerns." But this, too, puts the cart before the horse: The president's power to make recess appointments does not vest until there is a recess. Yes, the president has constitutional power to make recess appointments during a recess, but the Senate has constitutional power to set its own rules and procedures, and to decide whether to go into recess and thus trigger the president's recess appointment power. (And the House, in turn, has a limited constitutional power to veto the Senate from adjourning for more than three days.)

The OLC's backwards view of the president's and Senate's respective powers is akin (as I previously noted) to the Senate arguing that the president must make a treaty because not to make treaties would unconstitutionally "prevent" the Senate from ratifying treaties. Just as the Senate's power treaty vests only once the president supplies the necessary prerequisite, so it is with the president's recess appointment power, which is triggered only by the Senate going into recess.

The OLC opinion is marred by other flaws of logic. For most of the opinion, OLC stresses that test of whether the Senate is in "recess" must be a "practical" inquiry governed by substance, not form: was the Senate really "available to perform its advice-and-consent function"?  But when faced with the fact that the Senate actually is available during its adjournments, and in some cases even passed legislation and conducted other business during similar "recesses," the OLC suddenly pivots from substance to strict formality: Even though the Senate can do business during pro forma sessions, OLC argues, the Senate's scheduling orders say that there will be "no business conducted," and the president may "rely" on those public pronouncements.

Legal opinions, laden with citations to precedents, are inherently backward looking. But in this case, the most important view is the road ahead. President Obama has dramatically increased presidential power, and in service of an extremely controversial appointment. Republicans will not let Democrats forget this.  Future Republican presidents and presidential nominees will face strong pressure from the base to repay the Democrats in kind. 

Adam J. White is a lawyer in Washington, D.C.

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