May 08, 2013
D.C. Circuit Strikes NLRB Notice-of-Rights Rule
A three-judge panel of the D.C. Circuit struck the enforcement mechanisms for the NLRB rule requiring employers to post a notice of employee rights. The ruling yesterday in National Association of Manufacturers v. NLRB means that the NLRB rule is invalid.
The case strikes a blow at the NLRB effort to educate employees on their workplace rights, in an era where union membership is way down (7.3% of the private workforce) and where more and more workers enter the workplace without knowledge of their rights.
The case arose after the NLRB promulgated a rule that required employers to post a notice of employee rights in the workplace. Violation of the rule came with an unfair labor practice under Section 8(a)(1) of the NLRA. (It also came with a suspension of the running of the six-month period for filing any unfair labor practice charge, and it constituted evidence of unlawful motive in a case in which motive is an issue.)
The rule says,
[a]ll employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures . . . .
29 C.F.R. Sec. 104.202(a). (Here's the single-page version of the notice poster.) But the plaintiffs argued that this violated the NLRA and free speech. The court agreed, concluding that the rule violated Section 8(a), which says:
The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.
The court said that "[a]lthough Section 8(a) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board's rule does both."
The court rejected the NLRB's argument that the required post is the Board's speech, not the employer's speech. Comparing Section 8(a) to First Amendment law, the court said that it didn't matter: dissemination of messages gets the same free speech treatment as creation of messages.
The court also rejected the NLRB's argument based on UAW-Labor Employment & Training Corp. v. Chao, (D.C. Cir. 2003), which upheld President Bush's executive order requiring government contractors to post notice at their workplaces informing employees of their rights not to be forced to join a union or to pay union dues for nonrepresentational activities. (The plaintiffs in that case argued only that President Bush's EO was preempted by the NLRA; they lodged no First Amendment claim.) The difference, according to the court: there was no prospect in UAW of a contractor's being charged with an unfair labor practice for failing to post the required notice.
(Two members of the panel, Judges Henderson and Brown, would have gone farther and ruled that the NLRB lacked authority to pomulgate the posting rule.)
The court addressed the preliminary issue whether the NLRB had a quorum when it promulgated the rule, in light of its recent ruling in Noel Canning v. NLRB that President Obama's recess appointments were invalid. But the court held that the NLRB had a quorum when the rule was filed with the Office of the Federal Register (the relevant time), even if it didn't have a quorum when the rule was published.
April 26, 2013
Government Seeks Supreme Court Review of Recess Appointment Power
The Obama Administration filed its Petition for Writ of Certiorari yesterday in NLRB v. Noel Canning, the case testing whether President Obama's recess appointments of three NLRB members satisfied the Recess Appointments Clause.
Recall that the D.C. Circuit ruled that they didn't. (Here's our coverage of the lower court ruling, with links to resources.) That court held that the Recess Appointments Clause permits a recess appointment only during an inter-session recess of Congress (i.e., a recess that occurs between one enumerated session of Congress and the beginning of the next), not an intra-session recess (i.e., a recess that occurs during the course of a session), and that it permits a recess appointment only for vacancies that arise during an inter-session recess. The court said that because President Obama made the appointments during an intra-session recess of Congress, and because the vacancies did not arise during an inter-session recess of Congress, the appointments were invalid.
The government seeks review of both issues--whether the President can exercise the recess-appointment power during an intra-session recess, and whether the President can fill a vacancy that existed (even if not arose) during a recess.
It's a good bet the Court will take this. There's a circuit split, and the stakes are high. As the government explains:
[The decision below] would deem invalid hundreds of recess appointments made by Presidents since early in the Nation's history. It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.
Petition at 11-12.
April 12, 2013
Epps Takes on Originalism in Recess Appointment Decision
Garrett Epps writes in the Atlantic that if originalism's aim was to keep judges from writing their personal views into the law, it has been "an abject failure." His evidence? Chief Judge David Sentelle's ruling in Noel Canning v. NLRB, the D.C. Circuit's January ruling striking President Obama's recess appointments to the NLRB.
Epps criticizes Judge Sentelle's ruling as putting a 1755 definition over the consistent executive practice based on a practical concern, getting the government's business done, and judicial precedent:
For at least a century, presidents--with congressional acquiescence--have interpreted [the Appointments Clause] as giving them the ability to make appointments any time when the Senate is not in session. But Chief Judge David Sentelle looked up the six-word entry for "the" in Samuel Johnson's Dictionary of the English Language, published in 1755, and found that its "original public meaning" was "noting a particular thing," meaning that there can be one and only one "recess" of the Senate.
Epps notes that the Noel Canning rule would have voided 232 appointments under President Reagan, 78 under President G.H.W. Bush, 139 under President Clinton, and 171 under G.W. Bush. Appointees include Alan Greenspan and Lawrence Eagleburger.
Epps points to a recent Congressional Research Service report, The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications. The CRS issued a companion report, Practical Implications of Noel Canning on the NLRB and CFPB.
April 10, 2013
Senate Judiciary Committee Takes Up Srinivasan Nomination
The Senate Judiciary Committee begins hearings today (2:30 EDT) on President Obama's nomination of Principal Deputy Solicitor General Sri Srinivasan to the D.C. Circuit. The Committee web-cast is here.
April 09, 2013
President Nominates Three to NLRB
President Obama today sent three nominations for full terms at the NLRB to the Senate--a renomination of Board chair Mark Pearce, a Democrat, and nominations of two Republicans. The President nominated two Democrats to full terms in February.
The nominations come just months after the D.C. Circuit ruled in Canning v. NLRB that the President's recess appointments to the Board were invalid. According to TPM, the administration plans to appeal that decision, but in the meantime it "has prompted more than 100 businesses to claim the board lacks authority to take action against them becuase two of its members are not there legitimately."
February 14, 2013
Is the Violence Against Women Act Unconstitutional?
The Senate this week reauthorized the Violence Against Women Act and added a provision authorizing Native American Indian tribal courts to try non-Indians for acts of violence against Native American tribal members. The provision, Section 904 of the Senate-passed VAWA, caught the attention of some on the right, who claim it's unconstitutional.
The Heritage Foundation outlined the argument in a post today. According to the post, congressional extension of tribal jurisdiction to non-Indians violates the Appointments Clause and the life-tenure provision in Article III. The reason, according to the post, is simple: tribal judges aren't appointed pursuant to the Appointments Clause, and they don't meet the requirements of Article III. They therefore can't mete out punishment against non-Indians.
To unpack this, it helps to understand the debate between congressionally delegated power to tribes versus inherent power of tribes. Advocates of the congressionally-delegated view say that tribes operate pursuant to congressional delegation, and therefore the full force of the Constitution applies. Advocates of the inherent power view say that tribes have inherent sovereignty and authority on their lands, and that they operate pursuant to their own rules and any overriding congressional requirements.
The Supreme Court has weighed in, but barely. It ruled in Oliphant v. Suquamish Indian Tribe that tribal courts lacked inherent authority over non-Indians, but it suggested that Congress could extend their authority to reach non-Indians. In United States v. Lara, the Court ruled that Congress has authority to relax the restrictions on a tribe's inherent sovereignty to allow it to exercise inherent authority to try non-member Indians.
The Heritage Foundation piece takes the congressionally-delegated-power view. This means, as the piece argues, that the Constitution applies with full force over the tribal courts, and that if they exercise jurisdiction over non-Indians, they, like regular Article III courts, have to meet constitutional requirements. (You might ask why the piece didn't argue that they similarly have to meet due process requirements. The reason: Congress extended due process protections in the earlier Indian Civil Rights Act and in the VAWA itself.)
The Senate took the inherent-authority view. Thus Section 904 of the VAWA says, "the powers of self-government of a participating tribe include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons." (Emphasis added.)
Which view is right? Well, the Court has suggested in both Oliphant and Lara that the inherent-authority view is correct. But that view might not get five Justices on the current Court. So we're not sure how the Court would rule.
The Congressional Research Service has a terrific report on the issue here.
January 25, 2013
D.C. Circuit Strikes President Obama's Recess Appointments to NLRB, Tees Case for Supreme Court
The D.C. Circuit ruled today in Noel Canning v. NLRB that President Obama's three recess appointments to the NLRB last year, on January 4, 2012, were invalid under the Recess Appointments Clause, and that the NLRB therefore lacked a quorum to issue its decision finding that the petitioner violated the NLRA. The ruling tees the issue up for likely Supreme Court review.
We've previously posted on President Obama's recess appointments and court challenges here, here, and here. Here's our post on the OLC memo concluding that President Obama had authority to make the appointments.
The case arose after President Obama appointed three people to the NLRB on January 4, 2012, when the Senate was operating under a unanimous consent agreement that provided that it would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The pro forma sessions are designed to keep the body in business so that it's not "in recess" for Recess Appointment Clause purposes, thus thwarting the President's ability to make unilateral recess appointments. (During these sessions, the Senate actually engaged in some business, including passing a temporary extension to the payroll tax and convening the second session of the 112th Congress.) The Senate did not adjourn sine die before the end of the first session of the 112th Congress, and thus according to the court the Senate did not have an intersession recess between the first and second sessions of the 112th Congress. Instead, "the First Session of the 112th Congress expired simultaneously with the beginning of the Second Session." Op. at 42.
The petitioner challenged the appointments after the NLRB, with President Obama's appointees, issued a decision concluding that he violated the NLRA. The petitioner claimed that the appointments were invalid under the Recess Appointments Clause, that the NLRB wouldn't have had a quorum without those appointees, and without a quorum it didn't have any authority to issue its decision against him.
The D.C. Circuit agreed. It ruled that the Recess Appointments Clause only authorizes intersession appointments, not intrasession appointments, and that it only authorizes appointments for vacancies that happened during the intersession recess (and not that merely existed during the intersession recess).
As to the intersession requirement, the Court relied principally on the plain text of the Clause:
[t]he 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.
The court explained that the phrase "the Recess" must refer to the intersession recess, because of the use of the definite article "the." If the Clause were to cover intrasession recesses, in contrast, the text would have used the phrase "a recess" or "recesses." The word "the" here identifies "recess" only as the intersession recess. The court also looked to history, structure, other text, state constitutionalism, and other sources to buttress its textual analysis. It said that the OLC's position would allow the executive to define the scope of his or her own recess appointment power and to make a recess appointment anytime the Senate broke for lunch. "This cannot be the law." Op. at 26.
This part of the ruling puts the D.C. Circuit at odds with the Eleventh Circuit and its ruling in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).
As to when the vacancy happens, the D.C. Circuit also relied principally on text, but looked to other sources, too. The court said that "happen" must mean that the vacancy arises during the recess, not that it merely exists during the recess.
This part of the ruling puts the D.C. Circuit at odds with the Second, Ninth, and Eleventh Circuits. It was also unnecessary: as Judge Griffith points out in concurrence, the court's ruling on the intrasession appointment was sufficient to vacate the NLRB's decision, without considering when the vacancies happened.
Because of the importance of the issues and the circuit splits, look for this case to go to the Supreme Court.
There's just one potential hiccup: It's not obvious that the courts have jurisdiction to hear the constitutional claims. The NLRA says that courts can consider appeals from NLRB judgments only when parties raised the issues at the NLRB, unless there are "extraordinary circumstances." The parties didn't raise the appointments challenges at the NLRB, but the court said that there were "extraordinary circumstances": the appointments objections "go to the very power of the Board to act and implicate fundamental separation of powers concerns." Op. at 11.
January 24, 2013
President to Nominate Cordray (again) to Lead CFPB
President Obama will re-nominate former Ohio AG Richard Cordray to head the Consumer Financial Protection Bureau, according to WaPo. Cordray is currently serving in that role as a recess appointee.
Recall that President Obama recess-appointed Cordray just over a year ago after Republicans made clear that they wouldn't confirm him. Republicans objected to both the CFPB and to Cordray. We posted on substantive objections here; we posted on procedural and constitutional objections here.
Cordray's nomination and another nomination expected today, former federal prosecutor Mary Jo White to head the SEC, are seen as part of the administration's drive to more tightly regulate financial markets. They promise to (again) create a stir in Congress.
December 31, 2012
No Standing to Challenge President's NLRB Recess Appointments
The Seventh Circuit ruled last week in Richards v. NLRB that the petitioners lacked standing to challenge President Obama's 2012 recess appointments to the NLRB. The ruling means that this challenge to the recess appointments is dismissed. We posted on another challenge, in the D.C. District, with links to other posts on those recess appointments, here.
The Seventh Circuit case arose out of a dispute over unions' rule that required non-union employees to file an annual objection to opt out of paying dues for the unions' non-collective-bargaining activities. (Non-union members that are part of a union's collective bargaining unit can be charged dues for a union's collective bargaining, but they cannot be required to pay dues for non-collective-bargaining activities, like political activities.) Non-members filed unfair labor practice charges against the unions, arguing that the annual renewal requirement violated the unions' duty of fair representation by placing an undue burden on objectors. They sought an order striking the policies and a refund for non-members who at one time objected but failed to renew their objections. The petitioners did not seek a refund for themselves, because they renewed their objections every year.
The NLRB granted the order striking the annual renewal requirement, but denied the refund for other non-members.
While the case was pending at the NLRB (on the petitioners' motion for reconsideration), on January 4, 2012, President Obama made three recess appointments to the Board, without which the Board would have lacked a quorum. The NLRB later denied the petitioners' motion for reconsideration.
The petitioners argued that President Obama's appointments were invalid, and therefore that the NLRB's action on reconsideration was invalid. They said that the Recess Appointments Clause allowed the President to make recess appointments only during intersessions of Congress (any recess between the two annual sessions of Congress, generally starting in December and ending on January 3, when the next session starts), not intrasessions of Congress (any recess during an annual session of Congress). They also said that the Senate didn't consider itself in recess when President Obama made the appointments. (It was in pro forma sessions.)
The Seventh Circuit dismissed the case for lack of standing and didn't reach the merits. The court ruled that the plaintiffs already got all the relief they asked for and all they qualified for--that they suffered no injuries from NLRB decisions that could be remedied on appeal. In particular, the court said that the NLRB already struck the annual renewal requirement, and that the petitioners didn't qualify for a refund because they renewed their objections annually and didn't pay the non-collective-bargaining assessment.
The court also ruled that the plaintiffs didn't have standing to seek postage fees they paid for their annual objection renewals, because they didn't raise this claim at the NLRB.
December 31, 2012 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack
July 06, 2012
D.C. Circuit Strikes Copyright Judges' Removal Protection
A three-judge panel of the D.C. Circuit ruled today in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board that the appointment of Copyright Royalty Judges, or CRJs, violated the Appointments Clause. The court remedied the violation by reading out of the CRJ statute the CRJs' for-cause removal provision and permitting the Librarian of Congress to remove CRJs at will. The court said that this alone changed CRJs from "Officers" to "inferior Officers" under the Appointments Clause and allowed them to be appointed by the Librarian of Congress (as provided by statute), and without Presidential nomination and advice and consent of the Senate.
The ruling simply modifies a characteristic of the CRJs' job to put them in line with the Appointments Clause (by making them inferior officers) and sends the case back to the lower court for consideration of the merits. It probably doesn't break any significant new ground under the Appointments Clause or separation of powers (even if this kind of ruling is relatively rare). The court looks to both the power of the position and to its removability to determine whether it's an "Office" or "inferior Office," but the court turns it from an "Office" into an "inferior Office" by focusing only on removability. The court's remedy--reading out of the CRJ statute the for-cause removal and leaving CRJs with only at-will removal--takes a page from the Supreme Court's playbook in Free Enterprise Fund v. PCAOB.
The case arose out of a challenge to a CRJ decision on licensing terms between an association of noncommercial webcasters who transmit digital music over the internet in high schools and colleges and owners of the songs' copyrights. CRJs have statutory authority to set these terms, subject to review, discussed below, when the parties can't come to an agreement. The association, Intercollegiate, didn't like the terms set by the CRJ and brought this case arguing that the CRJ is unconstitutional under the Appointments Clause.
That Clause, Article II, Section 2, Clause 2, says that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States," but that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Intercollegiate lodged a two-prong attack: First, it argued that CRJs were "Officers" and thus required Presidential nomination and Senate advice and consent (and that their appointment by the Librarian of Congress therefore violated the Appointments Clause); and second, it argued that the Library of Congress wasn't a "Department" (and that therefore Congress couldn't vest CRJs' appointment in its head, the Librarian of Congress, and their appointment was therefore unconstitutional).
The court agreed on the first argument, but disagreed on the second. The court, principally applying Edmond v. United States, ruled that the CRJs were "Officers," not "inferior Officers" the the purpose of the Appointments Clause. It wrote that the CRJs were supervised by the Librarian of Congress and the Registrar, but only as to pure issues of law, leaving the CRJs with vast discretion and authority to set rates on their own. It said that CRJs could only be removed by the Librarian of Congress for misconduct or neglect of duty. And it wrote that the CRJs' rate determinations were not reviewable or correctable by any other officer or entity within the executive branch (although they are reviewable by the D.C. Circuit). Thus it ruled that the three Edmond factors lined up in favor of "Officer," not "inferior Officer."
But the court didn't stop there. Following the Supreme Court's approach in Free Enterprise Fund, the court severed the removability provision for CRJs--the one that allows the Librarian of Congress to fire them only for misconduct or neglect of duty--and read out the "misconduct or neglect of duty" part. The effect was to leave CRJs with no protection against termination--and to allow the Librarian of Congress to remove them at will. This alone, the court ruled, turned the otherwise "Officers" into "inferior Officers." And this allowed Congress to vest their appointment in the Librarian of Congress--exactly what Congress did--and saved them. And: "We further conclude that free removability constrains their power enough to outweigh the extent to which the scope of their duties exceeds that of the special counsel in [Morrison v. Olson]."
As to Intercollegiate's second argument, the court ruled that the Library of Congress is a "Department" under the Appointments Clause. It ruled that the Library's power "to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case" are associated with executive authority, even if there are some aspects of the Library (like the Congressional Research Service) that make it look like a legislative agency. The Librarian of Congress is the Library's "head," and so the appointment of the now-inferior-officers is valid.
July 6, 2012 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack
February 16, 2012
House Judiciary Examines Recess Appointments
The House Judiciary Committee might not be the most obvious body to conduct oversight of President Obama's recent recess appointments to the NLRB and the CFPB. But that's just what it did in a hearing yesterday, featuring testimony by two former OLCers and a law professor.
The prepared statements of the Honorable Charles Cooper (arguing against authority for the appointments), John Elwood (arguing for), and Jonathan Turley (arguing against) are together a terrific back-and-forth on the constitutional issues and a wonderful complement to the Obama administration's OLC memo concluding that the appointments were authorized.
We've covered this issue from its beginning. Here are some highlights:
- Plaintiffs in ongoing litigation challenge the President's recess appointments to the NLRB in court;
- Republican Senators join that suit as amicus;
- Obama Administration's OLC OKs the recess appointments;
- The President makes the recess appointments in the first place.
February 06, 2012
Republican Senators to Oppose Recess Appointments as Friends of Court
A group of 39 Republican Senators said on Friday that they would file an amicus brief in a court case challenging President Obama's recent recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board.
We posted most recently on the ongoing litigation brought by the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business against the NLRB. The plaintiffs in that case most recently filed a motion to amend their complaint to include a charge that President Obama's recess appointments to the NLRB were unconstitutional, and therefore that the NLRB didn't have sufficient sitting members to enforce its new rules. It's not clear if the Republicans seek to weigh in on this case, though: It involves only the NLRB, not the CFPB.
Senator John Cornyn (R-TX) released this statement on Friday:
American democracy was born out of a rejection of the monarchies of Western Europe, anchored by limited government and separation of powers. We refuse to stand by as this President arrogantly casts aside our Constitution and defies the will of the American people under the election-year guise of defending them.
Here's the statement from the Republican Senators:
We the undersigned believe that President Obama's January 4, 2012 recess appointments of individuals to lead the Consumer Financial Protection Bureau and National Labor Relations Board were unprecedented and unconstitutional. We intend to jointly file an amicus brief challenging the constitutionality of President Obama's appointments to the National Labor Relations Board and Consumer Protection Financial Bureau.
January 18, 2012
Groups Challenge President's Recess Appointments
The plaintiffs--including the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business--filed their initial complaint in the Federal District Court for the District of Columbia last September, alleging that the NLRB lacked authority under the National Labor Relations Act to implement several new rules, including one that would require employers to post notices to their employees of their rights under the NLRA.
In the motion last week, the plaintiffs sought to amend their complaint to add a new charge--that President Obama's recent recess appointments to the NLRB were unconstitutional, and therefore the NLRB didn't have sufficient sitting members to enforce its new rules. From the memorandum in support of the motion:
The Board has lost its quorum due to the expiration of Member Becker's term and the President's failure to appoint new Board members with the advice and consent of the U.S. Senate, as required by Article II of the Constitution. . . . The President's purported appointment of the new Board members on January 4, 2012 was unconstitutional, null and void. As a result, there are at present only two validly serving members of the Board, Chairman Pearce and Member Hayes. The Supreme Court has declared that the Board lacks authority to act with only two members. New Process Steel, L.P. v. NLRB.
January 12, 2012
OLC OKs President Obama's Recess Appointments
The Justice Department Office of Legal Counsel today released its opinion (dated January 6, 2012) concluding that President Obama had authority under the Recess Appointments Clause to appoint Richard Cordray as head of the Consumer Financial Protection Bureau and members of the National Labor Relations Board during less than three-day breaks between pro forma sessions of the Senate. We most recently posted on the appointments here.
Recall that opponents of the appointments argued that the three-day breaks between pro forma sessions were not long enough to constitute a "recess" of the Senate, and that the appointments therefore required Senate advice and consent and violated the Recess Appointments Clause.
The OLC took a functional approach to the definition of "recess," asking whether the Senate's pro forma sessions would have allowed the Senate to fulfill its advice-and-consent role for ordinary appointments. The Office said no, and therefore the President may use his recess appointment power.
The OLC took it in a two-step. First, it asked whether the President had authority to make a recess appointment during the Senate's recess here--a 20-day intrasession recess. Answer: Yes, based on the OLC's prior advice, historical practice, and the limited judicial authority on the question. This is relatively uncontroversial.
Second, it asked "whether the President is disabled from making an appointment when the recess is punctuated by periodic pro forma sessions at which Congress has declared in advance that no business is to be conducted." Answer: Also yes, although it acknowledged that this was somewhat more controversial--and creates "some litigation risk for such appointments."
This functional approach allowed the OLC to dodge the harder question, whether any three-day recess is necessarily a "recess" under the Recess Appointments Clause. The memo explains:
Because we conclude that pro forma sessions do not have this effect [that the Senate is unavailable to fulfill its advice-and-consent role], we need not decide whether the President could make a recess appointment during a three-day intrasession recess. This Office has not formally concluded that there is a lower limit to the duration of a recess within which the President can make a recess appointment.
Op. at 9, n. 13. In other words, what's important isn't the three-day recess between pro forma sessions, but the 20-day recess (which is a "recess" under the Recess Appointments Clause) punctuated by pro forma sessions (which do not allow the Senate to fulfill its constitutional role of advice and consent). (Under this reasoning, the pro forma sessions could be spread across any number of days--1, 2, or 15. What matters is whether the Senate can conduct business, or, more precisely according to the OLC, whether the President determines that the Senate can conduct business--see below.)
The Office cited its own precedent, historical practice, and the Senate Judiciary Committee's own position in support of this functional approach.
Under the approach, the Office concluded that "the President may determine that pro forma sessions at which no business is to be conducted do not interrupt a Senate recess for purposes of the Recess Appointments Clause."
The OLC rejected arguements that the Senate employed pro forma sessions, with full legal effect as other sessions, in other contexts (because those contexts are different); that the Senate itself, under its rules, should be able to determine when it's open for business (because that determination can't trump the Constitution); that based on experience the Senate is, in fact, open for business during pro forma sessions (because the Senate said here "no business conducted," and because the President gets to determine this); that precedent on the pocket veto should constraint the President's recess appointment authority (because the purposes are different); and that the Justice Department (through then-SG Kagan) took a different position on NLRB appointments in 2007 (because SG Kagan's letter, like this OLC opinion, did not answer the question whether an intrasession recess of three days or less constitutes a "recess" under the Recess Appointments Clause).
January 08, 2012
President Obama's Recess Appointments
President Obama's recess appointments last week of Richard Cordray to head the Consumer Financial Protection Board and three new members of the National Labor Relations Board have come under fire for violating a 3-day rule. That is, opponents claim, the period between the Senate's pro forma sessions this month and last is less than three days, and therefore is not a "recess" under the President's recess appointment power. In short, they say, because the Senate is not in "recess," the President lacks authority to appoint without Senate confirmation.
But there's nothing in the Constitution that defines a "recess" as three days or more (or as any other period). The (scant) textual support for opponents' claim comes from Article I, Section 5, Clause 4, the Adjournments Clause, which says that neither chamber can take a break of more than three days without the consent of the other:
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Based on this Clause, the Justice Department wrote in its brief in Mackie v. Clinton (D.D.C. 1993):
If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. . . . It might be argued that this means that the Framers did not consider one, two or three day recesses to be constitutionally significant. . . .
Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.
Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993), vacated as moot, 10 F.3d 13 (D.C. Cir. 1993), Memorandum of Points and Authorities in Support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment, at 24-26 (emphasis added). (Note the difference in language: The Adjournment Clause uses "adjourn"; the Recess Appointment Clause in Article II uses "Recess.")
Thus Article I, Section 5 doesn't plainly require, and the Justice Department's brief doesn't acquiesce to, a 3-day rule. In fact, the President has made recess appointments during recesses of three days or less between sessions at least twice--when President Truman appointed Oswald Ryan to be a member of the Civil Aeronautics Board on January 1, 1949, during a three-day recess, and when President Theodore Roosevelt appointed 160 mostly military officers during a several-hour recess. (In the last 30 years, the shortest recess periods during which a President made a recess appointment were 11 and 10 days: President Reagan made a recess appointment during an 11-day intersession recess, and President Clinton made a recess appointment during a 10-day intrasession recess.) See Henry B. Hogue, Congressional Research Service, Recess Appointments: Frequently Asked Questions.
Despite the lack of support for a 3-day rule, both parties in the Senate in recent years have sought to structure Senate recesses around it, and ran pro forma sessions every three days or less in order to avoid a recess of more than three days and thus, according to their view, deny the President an opportunity to recess appoint. Republicans went a step further this summer, when one group of Republicans from the Senate and another group from the House both wrote to House Speaker Boehner to urge him not to pass any House resolution that would permit the Senate to go into recess for more than three days (under the Adjournment Clause).
What with the obvious political motivations and the pro forma (and not real) sessions, some have claimed that President Obama had authority to recess appoint even in a recess of less than three days. But in truth we need not go so far, because there's only very weak textual support for a 3-day rule, the Justice Department has not acquiesced in a 3-day rule, and past practice cuts against such a rule.
The lack of a 3-day rule wouldn't leave Congress without appropriate checks. It still has the power of the purse, it still has oversight authority, and the Senate still has its advise-and-consent role for non-recess appointments (including those recess appointments that expire and then come up for Senate confirmation, assuming the President doesn't re-recess-appoint, which the President may do). And, of course, Congress can move to change the law.
This last course seems most appropriate here. Senate Republicans never objected principally to Cordray; instead, they held up his confirmation because they objected to the CFPB. The cleanest, most transparent way to change the CFPB, of course, is to try to change the CFPB.
The Congressional Research Service has done some excellent work (as usual) on recess appointments. Check out these:
- Recess Appointments: Frequently Asked Questions
- Recess Appointments Made by President George W. Bush
- Recess Appointments: A Legal Overview
- Recess Appointments of Federal Judges
- Judicial Recess Appointments: A Legal Overview
November 17, 2011
Arizona Supreme Court to Jan Brewer: Unconstitutional to Remove Chair of Restricting Commission
The Arizona Supreme Court issued an order today finding the controversial removal of Colleen Mathis, the Chair of the Arizona Independent Redistricting Commission, by Governor Jan Brewer (pictured right) was unconstitutional.
Here is the entire order:
Having considered the filings in this matter by the petitioner, the intervenor, the respondents, and the amici curiae, and the arguments of counsel,
1. The Court accepts jurisdiction of the petition for special action, having concluded that it has jurisdiction under Article 6, Section 5(1) of the Arizona Constitution;
2. The Court concludes that the issues presented in this matter are not political questions and are therefore justiciable. See Brewer v. Burns, 222 Ariz. 234, 238-39 ¶¶ 16-22, 213 P.3d 671, 675-76 (2009);
3. The Court concludes that the letter of November 1, 2011, from the Acting Governor to the intervenor Colleen Mathis does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” by the intervenor Mathis, as required under Article 4, Part 2, Section 1(10) of the Arizona Constitution;
Therefore, the Court grants the relief requested by the intervenor Mathis and orders that she be reinstated as chair of the Independent Redistricting Commission.
The Court in due course will issue an opinion more fully detailing its reasoning in this matter.
Article 4, Part 2, Section 1(10) of the Arizona Constitution provides "After having been served written notice and provided with an opportunity for a response, a member of the independent redistricting commission may be removed by the governor, with the concurrence of two-thirds of the senate, for substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office."
“The Arizona Constitution provides that the Governor has direct oversight of the Independent Redistricting Commission, as well as the ability to remove any member due to "substantial neglect of duty‟ or "gross misconduct in office.‟ I invoked that authority today with my decision to remove IRC Chairwoman Colleen Mathis, and I‟ve called the Arizona Legislature into Special Session so that the State Senate may concur with this removal, in accordance with the Constitution.
“I recognize that my decision will not be popular in some quarters. I certainly did not reach it lightly. However, the conduct of the IRC – led by Chairwoman Mathis – has created a cloud of suspicion that will not lift. A flawed redistricting process has resulted in a flawed product. Just as disturbing, the public does not have confidence in the integrity of the current redistricting process. As Chairwoman of this Commission, the buck stops with Ms. Mathis.
“Today‟s action isn‟t the easy thing, certainly. But I‟m convinced it‟s the right thing. I will not sit idly-by while Arizona‟s congressional and legislative boundaries are drawn in a fashion that is anything but Constitutional and proper. Arizona voters must live with the new district maps for a decade.
“I urge the Senate to act quickly so that a newly-constituted Redistricting Commission may complete its duties in time.”
The dispute seems to be a classic one in which the Executive removed an official (and was supported by the legislature) based upon a disapproval or disagreement rather than the constitutionally required good cause standard.
More on the Arizona Supreme Court's full opinion when it appears.
August 26, 2011
White House Publicizes Push-Back on Hold Ups of Judicial Nominees
The White House recently posted this info-graphic (below) on the administration's successes in judicial nominees and on congressional footdragging. According to the stats, President Obama has seen only 62.6% of his nominees confirmed (compared with 86.8% for President George W. Bush, 84.2% for President Clinton, and 77.9% for President George H.W. Bush). Obama circuit court nominees have waited on average 151 days between their vote in the Senate Judiciary Committee and confirmation (compared with 29 days for President Bush's nominees); district court nominees have waited on average 103 days (compared with 20 days for President Bush's nominees). President Obama nominated 20 judges who passed the Judiciary Committee but have yet to receive a vote in the Senate.
As a result, one of ten federal judgeships is vacant, and the wait for civil trials is increasing. According to Chief Justice Roberts (in his 2010 year-end report on the federal judiciary): "Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal judiciary."
Check out JudicialNominations.org for more.
July 19, 2011
Republicans Continue to Demand Changes to CFPB
President Obama nominated former Ohio attorney general Richard Cordray on Monday to lead the Consumer Financial Protection Bureau. But congressional Republicans continue to say they'll hold up any nomination until the nascent CFPB undergoes fundamental changes. (They also object to Cordray, who, some say, has been too tough on banks and their lending practices.) Under the Dodd-Frank Wall Street Reform and Consumer Protection Act passed last year, the Bureau is set to receive its full regulatory powers on Thursday, July 21. But a lack of a confirmed leader will hamper its regulatory efforts.
Among the key changes that Republicans are demanding:
- Replace the single Director with a Board. Republicans object that the Bureau has just one Senate-confrimed appointment--the Director--and that the Director has too much regulatory power under the Act. A board would diffuse power.
- Take the CFPB's funding out from under the Federal Reserve and put it directly through the regular appropriations process. Republicans say this will mean greater transparency and accountability for the Bureau.
- Allow the Financial Stability Oversight Council to set aside or to stay any regulation issued by the CFPB under certain circumstances. This would mean that another body has veto power over the CFPB's actions.
While the changes might lead to a Bureau that is more answerable to Congress, they would also undercut the purposes of the Bureau: to ensure that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive.
The Republicans' tactic--holding up any nomination until the Bureau changes fundamentally--is an effective and fully constitutional check on the administration (even if it seems to be refighting a lost legislative battle in Appointment Clause clothes). But it can only go so far. President Obama has said that he will fight any changes to the CFPB. The Bureau is set to receive its full regulatory powers on Thursday. And President Obama could always make a recess appointment in August, the next scheduled congressional break--a move advocated by some Democrats. In other words, the Republicans' tactic may hold up the work of the Bureau, but it (alone) can't change it.
July 16, 2011
The Warren Appointment
Two days after Elizabeth Warren, the interim Consumer Financial Protection Bureau chief, appeared before the House Oversight and Governmental Reform Committee in a testy hearing on the CFPB, the White House has apparently decided against nominating Warren to lead the CFPB, according to WaPo.
Recall that congressional Republicans most recently demanded dramatic changes to the CFPB before they would confirm any nominee, leaving President Obama with a handful of options, including a recess appointment. But with the CFPB set to gain its full powers next week, under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 that established it, the lack of a permanent leader, and the ongoing disputes about the structure and leadership of the CFPB, will hamper its efforts.
July 11, 2011
White House Moves to Streamline Independent Agencies' Regs
President Obama issued an Executive Order today designed to "streamlin[e], improv[e], and eliminat[e] regulations" of independent regulatory agencies, including the Consumer Product Safety Commission, the Federal Trade Commission, the Federal Communications Commission, and the Securities and Exchange Commission. The EO is directed to get independent agencies on board with regulatory reforms that the administration required in its earlier EO, issued in January. (OIRA Chief Cass Sunstein told the House Energy and Commerce Committee in June that no independent agencies had submitted a plan under the earlier EO.)
The EO says that each independent regulatory agency within 120 days
should develop and release to the public a plan, consistent with law and reflecting its resources and regulatory priorities and processes, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.
The White House touts the EO as an "historic initiative" that will stimulate job creation and promote economic growth.
Like the January EO, the new EO leaves plenty of wiggle room ("consistent with law and reflecting its resources and regulatory priorities") and leaves the review and plan to the agencies themselves. But in contrast to the mandatory language in the January EO, the new EO, aimed exclusively at independent agencies, appropriately uses hortatory language ("should develop and release to the public a plan"), stepping back from directing the independents.
For a very recent argument that the President lacks directive authority even for non-independent agencies, check out Prof. Bob Percival's (U. Md.) forthcoming piece in the Fordham Law Review, Who's in Charge? Does the President Have Direct Authority Over Regulatory Decisions?
[Image: Man Controlling Trade, Model, Federal Trade Commission Building, Smithsonian Institution]