LEGAL JANUARY 15, 2014
In October 2010, Steven Bradbury, a senior Justice Department official in the Bush administration addressed a Washington Post op-ed to President Obama, urging him to “Call the Senate’s bluff on recess appointments.” Bradbury targeted the Republican Senate minority’s practice of engineering “phony ‘pro forma sessions,'” when the Senate is not in session, “to prevent the president from exercising his constitutional authority to make recess appointments.” He urged Obama to declare the pro forma sessions a sham, and use the power prescribed by Article II of the Constitution to unilaterally “fill up all vacancies” on a temporary basis, during “the recess of the Senate.”
Just over one year later, President Obama took Bradbury’s advice. On January 4, 2012, while the Senate was meeting pro forma, Obama announced four recess appointments, including three members of the National Labor Relations Board. At the time, the NLRB had only two of its five board seats occupied, less than the quorum required to enforce rules or decide cases; worker and union protections prescribed by the 75-year-old National Labor Relations Act were literally inoperable, and Senate Republicans and their business allies were determined to keep it that way.
With the new appointments, the NLRB went back to work. But in January 2013, a conservative D.C. Circuit appellate panel voted to shut it down again, ruling that the president had not been entitled to override Senate claims, however fictitious, to be in session.
At the time it was rendered, the D.C. Circuit’s decision was universally recognized as a Supreme Court blockbuster in the making. But it now seems little more than a blip on radar screens—at least on the left. That was apparent Monday, when the justices heard arguments in the administration’s appeal. Progressive Justice Stephen Breyer demanded of Solicitor General Donald Verrilli, “I just want to hear from your mouth why this is an important case.” Obama appointee Justice Elena Kagan dismissed the recess appointments clause itself as an “historical relic.” Moreover, prior to yesterday’s arguments, only four briefs had been filed urging the justices to keep the president’s recess-appointment authority intact. By contrast, 24 conservative luminaries, including Republican Senate leader Mitch McConnell, House Speaker John Boehner, former Bush I White House counsel C. Boyden Gray, and the U.S Chamber of Commerce, filed briefs urging the justices to scuttle that tradition.
Progressives and Democrats had lost interest for two reasons. First, a Senate deal last summer ended the filibusters of Obama’s NLRB nominees. Then this fall, Senate Democrats deployed the so-called “nuclear option” to terminate filibusters of all executive branch and appellate judicial nominees. Senator Chuck Schumer told the New York Times last Friday, “The rules change has taken the steam out of the issue.”
The left seems intent on looking past the uniquely radical character of the Senate Republicans’ obstructionism—blocking nominees across-the-board rather than targeting particular candidates on ideology or character grounds, expressly to cripple agencies and effectively suspend laws. Even more puzzling is that progressives do not seem to recognize the license an adverse decision would provide to scale up this government-crippling agenda. Democrats might still wish President Obama had this option for filling executive vacancies if Republicans retake control of the Senate later this year.
In addition, court-focused Republicans, increasingly responsive to their libertarian Tea Party wing (not the formerly dominant pro-Executive Branch wing associated with the likes of Steven Bradbury), have seized on the recess appointments case to advance a broader, “shrink-government,” agenda for recasting constitutional law. An emerging plank in that platform, hammered frequently on Monday by lawyers for McConnell and the Chamber of Commerce, is that separation of powers was designed as exclusively a government-weakening and “liberty-protecting” device to “protect the people from the government”—with no regard to the framers’ often reiterated interest in fostering governmental, particularly executive branch, effectiveness.
But progressives seem disinclined to take a similarly broad view of the practical and legal issues at stake in the recess appointments case. “I cannot find anything,” Justice Breyer challenged Verrilli, “that says the purpose of [the recess appointments] clause has anything to do with political fights between Congress and the President.” Justice Kagan seemed to embrace a similarly narrow view of what the case is about when she said, “the question of how to define a recess really does belong to the Senate.”
Both these justices’ observations are correct. But they are also beside the point. The framers never anticipated twenty-first century Senate Republicans’ would use this power to shut down whole swaths of government. Indeed, in Federalist #76, Hamilton forecast that confirmation would “not often be refused,” and only for “special and strong reasons” pertinent to an individual nominee’s character or record. So of course there is no evidence that the recess appointments clause, viewed in isolation, was originally thought to have anything to do with inter-branch “political fights.” But the framers’ take on Obama’s recess appointments should be gauged through the broader lens of their overall vision of executive and legislative roles and interactions. In shaping the suite of provisions giving structure to that vision, the framers expressly focused on precisely the sort of political fights animating current appointment struggles.
In this light, Obama, in treating the Senate’s pro forma sessions as a sham, was defending the executive branch against an overt ploy to hamstring his most fundamental Constitutional directive—that he “shall take care to see that the laws are faithfully executed.” As that distinctive language makes clear, this mandatory (“shall”) duty can only be discharged through subordinate officials and institutions working under the president’s direction—precisely what Senate Republicans were seeking to deny Obama.
An “energetic” executive branch was, the framers constantly stressed, “essential” to the “genius of Republican government” (Alexander Hamilton in Federalist #70). In part, they designed the bedrock principle of separation of powers for the affirmative end of maintaining an independent and vigorous executive branch. The framers were extremely concerned that the legislative branch would overreach and seek to sap the executives’ “energy.” They stressed that, when such “political fights” arose, the Constitution gives the respective branches “provision for defense,” to “resist encroachments,” as James Madison famously wrote in Federalist #51. More pertinent, he observed:
“[I]t is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates .... [T]he weakness of the executive may require . . . that it should be fortified.”
This purpose mocks the libertarian refrain that the Constitution, and the separation of powers principle in particular, are only about making the federal government, in this case, the executive branch, smaller, weaker, and less effective.
On Monday, Solicitor General Verrilli spotlighted this big-picture originalist perspective. He paraphrased and cited Federalist #51. In closing, he warned that if the Court accepted the challengers’ invitation to intervene in this inter-branch “political fight,” that would, antithetical to the founders’ design, “write the recess appointment power out of the Constitution,” and “disarm one side.”
To this particular theme of Verrilli’s argument, it was not clear whether any one, on either wing of the Court, was listening.
Simon Lazarus is Senior Counsel to the Constitutional Accountability Center, a public interest law firm, think tank, and action center.