Constitution Daily

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Why the Senate majority should have a role in Noel Canning

January 13, 2014 by


David J. Arkush from the University of Richmond School of Law believes a critical party doesn’t have a voice in today’s Supreme Court arguments about presidential appointments: the political leadership that controls the Senate.

President_Barack_Obama_nominates_Robert_Leon_Wilkins_Cornelia_Nina_Pillard_and_Patricia_MillettToday the Supreme Court will hear arguments on the constitutionality of President Barack Obama’s January 2012 recess appointments in Noel Canning v. NLRB. Most commentators describe the case as a classic clash between two branches of government: The Senate held “pro forma” sessions to block recess appointments, and the President ignored the Senate’s wishes and made appointments anyway.

The case is important because the parties are asking the Court to choose between two strong positions that would dramatically alter the balance of power between the President and the Senate: Either the President can make recess appointments during virtually any Senate break, rendering the Senate’s advice and consent authority a nullity, or the Senate can block the President from filling important offices and judgeships by withholding consent and refusing to permit any recesses to arise, even when the Senate actually goes out of session for many weeks at a time.

Fortunately, the story of the disputed appointments is more complicated than most people realize, and the full picture provides reasons to reject both parties’ positions. Most of the missing details revolve around the role of the Senate majority, which has been wholly absent from the litigation and public debate over the controversy. I have argued <> that the Senate majority (rather than the full Senate) was the relevant decision maker for purposes of the disputed recess, and that it likely wanted to permit the President to make appointments.

Why would Senate majority support matter? First, a Senate desire to permit the appointments might render them legally valid, resolving the case without the need to adopt an expansive view of either the President’s or the Senate’s power. More on that below.

Second, and more generally, the possibility of Senate support suggests that the Supreme Court should proceed with caution. Noel Canning could substantially alter the balance of power between the President and the Senate in permanent and unpredictable ways. It would be odd to announce such a significant legal change if there is no actual dispute between the President and the Senate and the imagined conflict might never arise. Or when, as here, the courts have never heard the Senate’s views on the issue. (A group of minority-party Senators is participating in the litigation, but the majority is not.)

In fact, virtually none of the points in this post have been put before the Court because the parties lack the incentive to press them. It will be interesting to see whether the justices raise any themselves. Here are four questions the justices ought to be considering, all of which concern the role and the views of the absent Senate majority:

Are the President and the Senate really in conflict?

The first question is whether the President and the Senate are really in conflict. The President and the Senate majority share the same political party, and the majority has generally supported the President’s nominations. In fact, the Senate majority hasn’t disputed the appointments in any way. (The challenger, Noel Canning, is a bottling company from Washington state.) How, then, do we explain the common belief that the President and the Senate disagree? It must stem from an assumption that the Senate minority forced the majority to hold pro forma sessions, with the intent of blocking recess appointments—thereby placing the Senate as a body in conflict with the President despite the majority’s wishes.

That assumption is mistaken. Under Senate rules, a simple majority can adjourn at any time, initiating any type of recess it desires, and the minority has no power to stop it.

Why, then, didn’t the Senate majority take an ordinary recess? The Speaker of the House of Representatives wouldn’t permit it. Under the little-known Adjournments Clause of the Constitution, neither House of Congress can adjourn for more than three days without the other’s consent. In a gambit to block recess appointments, House Speaker John Boehner refused to grant his consent, leaving the Senate to hold a momentary pro forma session once every three days if senators wished to leave town for the holidays. This brings us to the next question for the Court.

Can the House of Representatives constitutionally interfere with presidential appointments?

Speaker Boehner’s refusal to permit the Senate to adjourn was unprecedented and likely unconstitutional. To be sure, the Adjournments Clause states that the Senate needs House consent to adjourn for more than three days. But to use that power to interfere with appointments oversteps the House’s role, contradicting the constitutional provisions that specifically govern presidential appointments.

The Constitution gives the President authority to make appointments with the Senate’s advice and consent, unless the Senate is on recess. It gives House no role in making, accepting, or rejecting presidential appointments, and that is no accident. The framers of the Constitution expressly contemplated giving the House a role before rejecting the notion.

Speaker Boehner believes he has found a way around the text and purpose of the constitutional provisions on appointments. It will be interesting to see whether the justices ask about his actions.

Who decides when the Senate is in recess—the President, the courts, or the Senate itself?

Another question is who decides when the Senate is in recess. The President is arguing that he has broad discretion to determine whether the Senate is available to provide advice and consent. Noel Canning is asking the Court to hold that the term “recess” has a narrow, technical definition that neither the President nor the Senate can alter (under which the President happens to have made his appointments one day late).

The Constitution appears to contemplate a different approach. It states that “Each House [of Congress] may determine the Rules of its Proceedings.” One might interpret this clause as saying that disputes over Senate recesses are “political questions,” meaning that the Constitution assigns them to one of the political branches (the Senate), leaving no role for the courts. More modestly, perhaps the courts can police the outer boundaries of the term “recess” to prevent wild abuses by the Senate, if they ever arise, but ought to defer to the Senate so long as it stays within the broad contours of the word’s ordinary meaning. Under either theory, the Senate should have a lead role in deciding whether it is on recess.

Originally, the challengers took this position. But at oral argument in the D.C. Circuit, one judge suggested that the argument doesn’t help them because Senate intent was unclear here. Then the D.C. Circuit went on to invalidate the appointments on broader and more forceful grounds than those the challengers advanced. So the challengers abandoned their position and adopted the D.C. Circuit’s. As a result, neither party is currently urging the Court to defer to the Senate, even though that’s probably the right approach.

If the Court wants to defer to the Senate, how should it discern the Senate’s wishes?

Finally, if the Court decides to defer to the Senate, how can it know what the Senate wanted? It can’t know for sure, but it has an obvious starting point: It can safely assume that the Senate majority wished to permit recess appointments, and that it would have made its intent clear by taking an ordinary recess but for the House’s interference. The majority shares the President’s political party, has generally supported his nominees, and has never complained at all about the appointments. In other words, the Court would hold that the appointments were valid in the absence of any complaint by the Senate majority (or persuasive evidence from the challengers that the majority did not wish to permit appointments).

Will the Court raise these issues?

One might reasonably ask whether the Court is likely to raise any of these issues. That’s hard to guess. Few people are familiar enough with the Senate rules and the events surrounding the recess appointments to spot problems in the narrative that the President and the Senate are in conflict. And, again, none of the parties is pressing the points raised here, or for that matter representing the views of the Senate majority at all. To spot these issues, the Court will have to do its homework.

David J. Arkush is a visiting assistant professor of law at the University of Richmond, and he teaches and writes in the areas of administrative law, legislation, and financial services regulation. Before joining the School of Law faculty in 2013, Arkush was a principal at Gupta Beck, PLLC, and directed Public Citizen's Congress Watch in Washington, D.C.

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