Thursday, June 26, 2014

A unanimous SCOTUS smackdown on Presidential power-grabbing...or is it?

Back in January of 2013, the DC Circuit (the United States Court of Appeals for the District of Columbia) ruled against the Obama Administration with regard to the question of whether or not the President had the authority to make three appointments to the National Labor Relations Board. The Administration had argued that these were properly made recess appointments, but the DC Circuit's ruling held that they were not, as the Senate was technically still in session--what is termed a "pro forma" session--thereby preventing any recess appointments (as there was no actual recess).

The fundamental issue here is when recess appointments should be allowed, with respect to the status of the Senate. In this regard, there are two kinds of Senate recesses: intrasession periods and intersession periods. After the DC Circuit's ruling, I explored and explained these concepts, what they mean and the history behind the general understanding of what they mean. What the DC Circuit essentially said in that ruling was that only intersession recess appointments were constitutional; intrasession recess appointments couldn't be because the language in the Constitution proper is clear: the power to make recess appointments is one that can only be exercised between full sessions of Congress (intersession periods), not during breaks of a single session (intrasession periods).

And such an understanding was nothing new under the Sun. As I explained, everyone in the halls of power understood the issue. What had happened occasionally in the past is that some Presidents had taken a few liberties here, had made recess appointments in unusually long intrasession periods. Of course, when you give people an inch, they tend to take a mile. So, the length of this intrasession period kept getting shorter and shorter. Various Administrations--including this one--commissioned legal opinions on the matter, in hopes of justifying their very clear unconstitutional actions (in making intrasession recess appointments). Of course, there was always pushback from the other side, pushback that culminated with Senator's Reid's use of pro-forma sessions to prevent the Bush Administration from making intrasession recess appointments, a practice repeated by Republicans under the current Administration.

The big difference, the reason why this case went to the DC Circuit? The Obama Administration decided it would simply ignore the pro-forma sessions and go ahead with recess appointments anyway. And for that very clear overreach of assumed executive power, the DC Circuit brought the hammer down, not only invalidating appointments made during pro-forma sessions--like Obama's--but also declaring all intrasession recess appointments to be unconstitutional.

The response from the Administration and much of the Left to the DC Circuit's very correct ruling was predictable: outrage and hyperbole, ludicrous claims about judicial activism and a judiciary overstepping its authority. But as I noted in the previous piece, such a response required the legal geniuses on the Left--and the constitutional scholar in the White House--to ignore past opinions on the matter from people like Ted Kennedy and Lawrence Tribe, who very much understood the reality of all of this, who recognized the simple fact that recess appointments are far mote limited in their potential application than various denizens of the White House would like us to believe.

Though I have to say, I think most of the people--including the President--on the left who aren't card-carrying morons get this: they know the DC Circuit was completely correct (as was Ted Kennedy), but they are unwilling to admit this in the moment for purely political reasons. Rest assured, if this ruling had come down during the previous Administration, most of those supposedly outraged by it would be applauding it, while most of those now applauding it would be feigning outrage. So it goes.

But the DC Circuit's ruling was appealed, and the case--National Labor Relations Board v. Noel Canning--moved on to the Supreme Court of the United States. And today, that body issued a ruling on the case. That ruling addressed four issues related to recess apppintments: 1) whether or not they can be made during intrasession periods, 2) if so, whether or not there a limit in this regard based on the length of the intrasession period, 4) whether or not such appointments can be made for positions that were not vacated during the recess (the Constitution indicates they cannot, in my opinion), and 3) whether or not pro-forma sessions serve to block the ability of the President to make recess appointments.

In the end, the Supreme Court ruled unanimously that the President's appointments to the NLRB were unconstitutional, though there was no unanimity of opinion with regard to why they were unconstitutional. Five Justices--Breyer (who wrote the Court's Opinion), Kennedy, Sotomayor, Kagan, and Ginsburg--agreed that intrasession recess appointments were constitutional, but that there must be a minimum length of ten days (except in cases of emergency) for such periods if the President is going to exercise this power. They also concluded that any open positions that existed prior to the recess could be filled.

Yet, they all also agreed that pro-forma sessions were a fair tactic, that keeping the Senate in such prevented the President from making recess appointments (and this is why, explicitly, Obama's appointments were unconstitutional for these five Justices). The actual text of the opinion in this regard is worth reading (p. 5):
Under the standard set forth here, the Senate was in session during the pro forma sessions at issue. It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business. The Senate could have conducted business simply by passing a unanimous consent agreement. In fact, it did so; it passed a bill by unanimous consent during its pro forma session on December 23, 2011. The Court will not, as the Solicitor General urges, engage in an in-depth factual appraisal of what the Senate actually did during its pro forma sessions in order to determine whether it was in recess or in session for purposes of the Recess Appointments Clause. Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.
Here, the Court shows a deep reluctance to evaluate the application of power, with regard to the other two branches of the federal government, but more on that after a review of the dissenting opinion.

The other four Justices saw things in pretty much the same way--the correct way, in my opinion--as the DC Circuit. Justices Scalia (who wrote the Dissent), Alito, Roberts, and Thomas agreed that the appointments should be invalidated, but not because of the existence of a pro-forma session, but because the appointments were made during an intrasession period. In their view--and mine, and the DC Circuit's--recess appointments can only be made during an intersession period, per the actual language of the Constitution. Thus, the issue of intrasession length is immaterial for their ruling. Similarly, they argue--or more properly, Scalia argues and the rest concur--that the only vacancies which can rightly be filled are those which occur during the actual recess, again per the language of the Constitution.

With regard to the pro-forma issue, Scalia doesn't really address its validity or lack thereof, because he doesn't need to since it is used exclusively during intrasession periods. But he does bring it up, mostly to mock it gently (p. 48):
Henceforth, the Senate can avoid triggering the Presi­dent’s now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is under­stood that no business will be conducted. Ante, at 33–34. How this new regime will work in practice remains to be seen.
Note how Scalia addresses the issue of pro-forma sessions as compared to Breyer: he treats them as what they really are (what, incidentally, the Administration thinks they are as well), sham proceedings engaged in for no other purpose that to stifle the exercise of executive power. Breyer, in contrast, treats them as legitimate, even though their express purpose is to not engage in any actual business, a reality Breyer gets around by citing the single lone instance of a pro-forma session passing a bill, wherein that passage was agreed to before-hand.

But as to the larger and more vital issue of intrasession versus intersession periods, what the Court has actually done here is turned past transgressions of the Consitution by various Presidents into historical precedent. And despite the attempt to make this look like a common understanding since the Founding, the evidence Breyer presents makes clear the truth of what I noted above: give people an inch and they'll take a mile. Congress has not objected to these intrasession appointments--which have sharply increased in frequency only in the past sixty years--and has now lost substantial power to check Presidential authority because of this failure . Though as Scalia rightly notes in his dissent, it is actually the people who have lost, because the Office of the President has just been granted--by the Court--power it was never supposed to have.

So one might be relieved that an expansion of Presidential power was checked in the moment, but the reality is quite different when one looks past today.

Cheers, all.

1 comment:

  1. Hi, Rob
    Long time since we talked. You haven't been posting too much.
    Below is a link to some stats that show exactly why the claim of "indiscriminate" shooting by the IDF in Gaza is completely bogus