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After the Filibuster

The coming war over presidential appointments

Feb 24, 2014, Vol. 19, No. 23 • By TERRY EASTLAND
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President Obama and Senate Democrats have gone to great lengths to secure the appointment of executive-branch officers and judges and thus help advance his policies and programs. Obama has made recess appointments in a way no president before him did, an action now being challenged in National Labor Relations Board v. Noel Canning, which offers the Supreme Court the first occasion in its long history to opine on the until-now obscure recess appointments clause. Meanwhile, Senate Democrats have pushed through a new voting requirement for the upper chamber that effectively eliminates filibusters of the president’s nominees and hastens their appointment.

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Obama with nominee Richard Cordray, January 2012

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How those actions will affect the appointments terrain, and our politics more generally, is an unfolding story. Obama’s recess appointments are almost certainly unconstitutional, and he risks a decision by the Court that could weaken the office of the presidency. Even so, the new measure intended to curtail filibusters will make it easier for Obama to appoint executive officers and judges who share his views. The measure will work this effect for the balance of 2014 and, if the Democrats retain control of the Senate in the elections this fall, for the final two years of his presidency. In the new appointments war, Obama holds the upper hand.

The Constitution treats appointments in Article II Section 2, where the appointments clause sets forth the familiar process by which the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” cabinet officers and other top executive-branch officials as well as judges. Immediately following it is the recess appointments clause, which says: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

Writing in The Federalist, Alexander Hamilton said the former clause provides “the general method” of appointment while the latter clause supplements it with “an auxiliary method,” to be used in cases “to which the general method [is] inadequate.” In such cases, observed Hamilton, appointments are made “singly,” by the president only, and not “jointly,” as they are under the general method.

It bears noting that the general method does not allow for an appointment to occur unless the Senate approves the nomination, while the auxiliary method permits only a temporary appointment that is made without the Senate’s concurrence. A president acting under the auxiliary method thus does not have to win the agreement of a Senate that may otherwise reject his nominees. In fact, a president resorting to the auxiliary method may be doing that in order to evade the Senate’s advice-and-consent role. As Obama has done.

His (putative) recess appointments were made to fill seats in two parts of the regulatory state where, not surprisingly, the policy differences between the two parties are among the sharpest—the Consumer Financial Protection Bureau and the National Labor Relations Board.

On July 18, 2011, Obama nominated Richard Cordray as director of the CFPB, notwithstanding that 44 Republican senators had previously declared their opposition to any nomination for that position unless the bureau were significantly restructured. The Senate, with Democrats then holding a 53-seat majority, was still working under a rule of deep historical roots whereby a 60-vote supermajority was necessary to overcome a filibuster of a nominee and set up a confirmation vote. On December 8, 2011, Cordray received 53 votes to end the filibuster of his nomination, 7 shy of the number he needed, and thus a vote on his nomination was denied.

Meanwhile, over at the National Labor Relations Board, 2011 was winding down with three lawfully appointed members on a board with five seats. One of the three was a recess appointee whose tenure was to expire on January 3, 2012. So the board, which by law must have three lawfully appointed members for a quorum to issue decisions, soon would have just two such members.

On December 17, 2011, Obama made nominations to fill the existing vacancies. But rather than stick with the general method of appointment by resubmitting the Cordray nomination (or nominating someone more agreeable to the Senate) and pressing for confirmation of the two NLRB nominees, Obama changed course in order to avoid the Senate: On January 4, 2012, he invoked the recess appointments clause and announced his intention to install Cordray as head of the CFPB and to fill what had by then become three vacancies on the NLRB.

The Senate had adjourned on December 17 under a unanimous consent agreement providing that it would “convene for pro forma sessions only, with no business conducted,” every three days (not counting holidays) from December 20 through January 20, adjourning at the end of each pro forma session. The Senate duly convened the sessions, using two of them to conduct business, and adjourning them as mandated.

As defined by the Congressional Research Service, pro forma sessions are “short meetings of the Senate or House held for the purpose of avoiding a recess of more than three days and therefore the necessity (under the Adjournments Clause) of obtaining the consent of the other House.” The intention with such sessions is not to do business, though sometimes business is done. In their typical form, a senator gavels in the session and after a short while gavels the session out.

Since the 1850s the Senate has used pro forma sessions on many occasions and for various purposes, including, in recent decades, to preserve its advice-and-consent authority. When Obama made his appointments on January 4, 2012, that was one day after a pro forma session had been convened and two days before the next one was scheduled to take place. Obama thus became the first president to attempt to make midsession recess appointments during a three-day break in Senate business.

The inevitable lawsuit challenging the president’s unilateral actions was one filed against the appointments to the NLRB. On February 8, 2012, a three-member panel of the board affirmed an administrative law judge’s ruling that Noel Canning, a family-owned soft drink bottling and distribution company in Yakima, Wash., had refused to implement a collective bargaining agreement allegedly reached with its workers’ union. The company sought to have the ruling voided, contending that the NLRB lacked a quorum for its decision, and indeed could not have had one, since only the two members already sitting at the time of Obama’s January 4 appointments had been lawfully appointed.

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia, where NLRB rulings are initially reviewed, unanimously decided in favor of Noel Canning. Now on appeal to the Supreme Court, with the oral argument having taken place last month, the case is one the administration seems likely to lose.

Constitutional text and structure, as well as original understanding and historic practice, support Noel Canning’s argument that the president may make unilateral appointments only during “the Recess,” which takes place between numbered “Sessions” of the Senate, and not, as the administration contends, during every short break within a session. The same considerations also support the company’s argument that the president may make recess appointments only to fill “Vacancies that may happen during the Recess”—and not also, as the administration says, vacancies that preexist the recess. The D.C. circuit agreed with those interpretations of the constitutional terms, and hence Noel Canning prevailed. 

However, there is also this: Since the Truman administration, presidents of both parties have invoked the recess appointments clause to fill not just vacancies that happened during the intersession recess, but also vacancies that arose when the Senate was still in session. Moreover, they have made unilateral appointments during not only intersession recesses but also “intrasession recesses”—those occurring within a session (yet until Obama, never during a three-day break).

Noel Canning thus is a case in which the original understanding of the Constitution and modern practice are in conspicuous tension. That is what animated Justice Antonin Scalia during the oral argument to ask Solicitor General Donald Verilli Jr., “What do you do when there is a practice that .  .  . flatly contradicts a clear text of the Constitution?” Verilli replied, “I think the practice has to prevail, Your Honor,” though he also suggested that the text was not so clear.

Verilli will not get Scalia’s vote, but justices concerned in Noel Canning about modern practice at odds with original meaning may find themselves looking to the legislative veto case. At issue in INS v. Chadha (1983) was whether one or both houses of Congress may “veto” agency decisions made pursuant to regulatory authority delegated by Congress to the executive branch. This “modern practice” commenced with the New Deal and was quite common when Chadha was decided, with the Court, on originalist grounds, finding the veto in violation of separation of powers. Said the Court: “[T]he 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.”

Finally, there is a question in the case that the D.C. circuit declined to resolve but is now under review in the Supreme Court, at its request. It is this: whether the president’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

Noel Canning says, “no, it may not be,” while the administration says the power may be exercised. Pro forma sessions, it has decided, are “constitutional nullities” because, in the view of Obama’s lawyers, the Senate is unavailable to “receive communications from the president or participate as a body in making appointments.”

The Court may well decide Noel Canning on the basis of this one question about pro forma sessions, which is ultimately a question about who decides whether the Senate is in recess—the Senate or the president. The question is important because the power to make a recess appointment is a contingent power, available only when the Senate is in recess.

Obama’s answer to the question is the president gets to decide, but the text and structure of the Constitution disagree with him, leaving the task to the Senate. The Senate has long operated under the view that it is not in recess for purposes of the recess appointments clause when it adjourns within a session for three days or fewer. And that is how the Senate, according to its official records, saw the three-day breaks in question, which leashed together the pro-forma sessions for a month, thus to affirm that the Senate was in session. The case for the Senate as the entity that should decide whether the Senate is in recess is powerful and during the oral argument seemed to persuade Justice Elena Kagan, who said,
“[I]t’s really the Senate’s job to determine whether they’re in recess or not.”

While predicting how the Supreme Court might decide a given case is not a wise use of time, it’s notable that most close observers of the Court think the argument in Noel Canning went poorly for the administration. And it’s possible that the Court’s decision will have ill consequences not just for Obama but for his successors, too.

During his argument time, Solicitor General Verilli spoke of the “stable equilibrium” achieved over the decades between the president and the Senate concerning decisions made pursuant to the recess appointments clause. There is irony here, inasmuch as Obama’s recess appointments upset that balance by effectively asserting that the Senate’s pro forma sessions are constitutionally worthless, a judgment no previous president ever made. As a result, Obama now faces the prospect of a decision by the Court that could complicate efforts by a future president (if not himself) to make a badly needed recess appointment.

One wonders how it is that Obama decided to invoke the recess appointments clause, inviting the lawsuit he did, when it is hardly in the interest of the presidency to encourage litigation of its powers. The answer may well be found in his highly charged impatience, which has caused him other problems with our government of separated powers. Obama’s explanation as to why he “recess-appointed” Richard Cordray as head of the CFPB doubtless may fairly be taken as his rationale for the NLRB appointments: “[W]hen Congress refuses to act .  .  . I have an obligation as President to do what I can without them. .  .  . I refuse to take no for an answer.”

As Obama awaits the Court’s decision in Noel Canning, the general method of appointment surely has never looked so good to him as it does now, thanks to the procedural work of the Senate Democrats. Thus, where previously a supermajority of 60 senators was required to end debate on an executive-branch or judicial nomination and proceed to a vote, now only a simple majority (meaning of senators present and voting) is necessary.

The Senate changed to a simple majority requirement on November 21 of last year, with Reid and his Democratic colleagues justifying it as the only way to overcome Republican minority “obstruction” of their agenda—obstruction they blamed on the supermajority rule. While Democrats over the years had complained about such obstruction on a range of matters, the context in which the new threshold was adopted involved nominations and judicial ones in particular—specifically those to the D.C. circuit. Indeed, it was in the long-running fight over the composition of this court that the simple majority requirement was adopted and its meaning made clear.

Contending that the court’s workload didn’t justify filling its vacancies but also hoping to maintain a Republican-appointed majority on the D.C. circuit—a majority necessary to slow the implementation of Obama’s regulatory agenda—Republican senators opposed the three nominations Obama made to that court on June 4, 2013—of Patricia Millett, Nina Pillard, and Robert Wilkins. By late November, each of the three had been blocked by failed cloture votes.

On November 21, when a second cloture vote on Millett also failed, Majority Leader Harry Reid proposed the new requirement, using an unusual parliamentary means for its adoption. A new cloture vote on Millett ensued, and it succeeded on a 55-to-43 vote. And so Millett was confirmed in early December, by a vote of 56 to 38.

Pillard and Wilkins, who succeeded Judge David Sentelle, a Reagan appointee who wrote for the court in Noel Canning, made the same passage: from a failed cloture vote to—thanks to the new threshold—a successful one, and then to confirmation. Such is the way of appointments now that no more than 51 votes are needed to overcome opposition and set up a confirmation vote.

Significantly, with the appointment of Wilkins there is now a Democratically appointed majority—by one vote—on a court that no longer has any vacancies. And it may be a very durable majority, given the strong possibility that Republicans may have to wait some time for enough vacancies to re-create their majority.

Obama thus has begun his last three years in office with a D.C. circuit likely to be even more disposed to defer to a regulatory agenda that is being implemented by an executive branch whose leadership is easier to confirm. Of course, every nomination Obama makes will in theory be easier to confirm. That will continue to be the outlook for his nominations in the 114th Congress, which starts in January 2015, provided Democrats hold the Senate in the elections this fall. If Republicans win six seats, however, they will have a majority of 51, and thus be in a much stronger position, thanks to the simple majority requirement, to prevail in a confirmation fight.

The supermajority rule has long been seen as a moderating force in the appointment process. That may now change as a result of the new requirement, such that presidents become more willing to nominate persons whose views are to the left, or right, of their party’s center.

Still, the new threshold doesn’t guarantee confirmation, and some Republicans think it will work in some cases in their favor. Thus, where under the old supermajority rule red-state Democratic senators (seven are up for reelection this year) were able to hide, in effect, behind cloture votes on left-wing nominees, now they will be on the record with up-or-down votes and thus at risk of upsetting more conservative constituents or damaging relationships with their colleagues and the president. As the legal writer Ed Whelan explains, it’s “much easier to explain away a vote against a filibuster” than an outright rejection of a presidential nominee.

Clearly, the stakes are high with appointments. There are 1,183 executive-branch positions that are filled under the general method of appointment. And more than 850 judgeships are filled that way as well, with turnover such that vacancies occur every eight or nine days, on average; Obama has made 212 judicial appointments to date. While only a small percentage of executive branch or judicial nominees are ever enveloped in controversy, those who are tend to have been nominated for strategically important positions or hold views that draw opposition, or both.

The new simple majority threshold doesn’t apply to nominations to the Supreme Court. And that takes us to the wild card in this story—whether there will be one or even two or more vacancies on that Court during Obama’s last three years in office. By relevant measures, such as the age of the current justices and the average number of terms justices since the New Deal have served, it’s fair to expect at least one vacancy in the balance of Obama’s presidency, possibly as early as this year, and it’s about as likely that one of the five center-right justices may be leaving the Court as one of the four judicial liberals.

In the case of a judicial liberal’s departure, Obama would be looking, of course, to advance his legal and political agenda. In the case of a vacancy created by a justice on the center-right, Obama would also be aiming to establish a five-justice, judicially liberal majority. In either case you could expect Republican opposition.

In the event of a fierce nomination battle, if not in preparation for one, might Senate Democrats extend the simple majority requirement to cover Supreme Court nominations? To ask the question is to see the difficult position Senate Republicans could soon find themselves in.

Terry Eastland is an executive editor at The Weekly Standard.

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