Thursday, February 2, 2017
There were some questions whether the seemingly hasty release late Friday afternoon of the Executive Order, Protecting the Nation From Foreign Terrorist Entry Into the United States, popularly called a "Muslim Ban," had been presented to the Office of Legal Counsel (OLC) as required by law.
Pursuant to a FOIA request, an OLC Memo has been released. It's seemingly a boilerplate memo, simply repeating the content of the EO and concluding "The proposed Order is approved with respect to form and legality."
It's a quick read at a bit over one page, with the EO appended afterwards. There is no legal analysis.
For comparison, the recent anti-nepotism OLC Memo, concluding that the President could appoint his son-in-law to a White House position runs about 14 single spaced pages.
Monday, January 30, 2017
Check out Marc Thiessen's piece in WaPo, arguing that Senate Republicans should use the nuclear option--destroy the filibuster--for President Trump's Supreme Court nominee.
Here's the NYT report on this unprecedented move.
President Trump fired Acting AG Yates for declining to defend his EO on immigration. The move is stunning, because the DOJ has by tradition enjoyed political independence from the White House. (The White House could have hired private counsel to defend the EO. Congress did just that to defend the DOMA in Windsor after DOJ declined.)
The White House released a statement that said Yates "betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. . . . Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration."
The White House has maintained that the EO was cleared ("as to form and legality") by the Office of Legal Counsel at DOJ. So far, OLC hasn't posted anything.
Politico reports that Senator Jeff Merkley (D-Or.) plans to filibuster any Trump Supreme Court nominee who is not Merrick Garland.
Said Merkley: "This is a stolen seat. This is the first time a Senate majority has stolen a seat. We will use every lever in our power to stop this."
Is turnabout fair play for the Republicans' refusal to give Garland a hearing? Or is a Democratic filibuster (because Republicans refused to give Garland a hearing) different than a Republican refusal to give a hearing at all?
Wednesday, December 28, 2016
A divided panel of the Tenth Circuit ruled yesterday that SEC Administrative Law Judges violate the Appointments Clause.
The important, pathbreaking ruling creates a circuit split--the D.C. Circuit went the other way earlier this fall--and tees the issue up for Supreme Court review.
The majority was careful to remind that its ruling extended only to SEC ALJs, not all ALJs, so it's not clear exactly how far the logic goes. It probably doesn't matter much, though, at least for now, because the case will almost surely go to the Supreme Court.
The case arose when David Bandimere challenged an SEC ruling against him, in part because the ALJ that issued the initial decision was appointed in violation of the Appointments Clause. The SEC rejected the argument, but the Tenth Circuit agreed with Bandimere. (The SEC ruled that the ALJ was an "employee," not subject to the Appointments Clause.)
The court ruled that SEC ALJs look just like the Tax Court Special Trial Judges at issue in Freytag v. Commissioner. In Freytag, the Supreme Court used a functional analysis to conclude that the STJs were inferior officers, to be appointed by "the President alone, in the Court of Law, or in the Heads of Department." The court said that SEC ALJs, like the STJs, (1) were "established by Law," (2) had "duties, salary, and means of appointment . . . specified by statute," and (3) "exercise significant discretion" in "carrying out . . . important functions." As inferior officers, the court said that they had to be appointed by the President, the courts, or a head of a department, and, because they weren't (this point wasn't contested), they violate the Appointments Clause.
The court parted ways with the D.C. Circuit on the same question, because, it said, the D.C. Circuit put too much emphasis on the third part of the Freytag analysis--in particular, that the ALJs didn't exercise final decisionmaking power: "We disagree with the SEC's reading of Freytag and its argument that final decision-making power is dispositive to the question at hand."
Judge McKay dissented, focusing on the differences between SEC ALJs and the STJs in Freytag ("Most importantly, the special trial judges at issue in Freytag had the sovereign power to bind the Government and third parties," while "the Commission is not bound--in any way--by an ALJ's recommendations") and the potentially sweeping implications of the ruling ("all federal ALJs are at risk of being declared inferior officers," and therefore in violation of the Appointments Clause).
Monday, November 28, 2016
Judge Christopher R. Cooper (D.D.C.) today rebuffed state arguments that a new Treasury rule governing state escheat claims of title and for payment of U.S. Treasury bonds did not violate the Constitution. The ruling ends this case (unless and until appealed) and means that the Treasury rule, designed to ensure that state judgments on the abandonment and ownership of Treasury bonds are accurate, stays in place.
The ruling is a blow to states like Kansas that sought to make it easier to show that a Treasury bond was abandoned, and that the state owned it, and therefore could redeem it.
The case came on the heels of some regulatory and judicial back-and-forth on the issues of whether and how states could take title to Treasury bonds under state escheat laws, redeem the bonds, and keep the proceeds. At one point in the back-and-forth, Kansas adopted a title-escheatment statute, which conveyed title of abandoned bonds to the state. Treasury agreed to redeem bonds in the state's possession, but, under its regs, not those escheated bonds not in its possession. So Kansas sued.
As that case was pending, Treasury enacted new regs. The new regs gave Treasure the "discretion to recognize an escheat judgment that purports to vest a state with title to a [matured by unredeemed] savings bond . . . in the state's possession" when there is sufficient evidence that the bond has been abandoned. But the rule does not recognize "[e]scheat judgments that purport to vest a state with title to bonds that the state does not possess." In short, in order for a state to claim payment, the rule provides that (1) states must have possession of the bonds, (2) they must have "made reasonable efforts to provide actual and constructive notice of the state escheatment proceeding" and an opportunity to respond to all interested parties, and (3) there must be sufficient evidence of abandonment.
Kansas and others sued again, this time arguing that the new rule was arbitrary and capricious in violation of the APA, that it violates the Appointments Clause and the Tenth Amendment, and that it illegal confers the power to review state court judgments to a federal agency.
As to Appointments, the plaintiffs argued that the Treasury official who signed and promulgated the rule, Fiscal Assistant Secretary David A. Lebryk, appointed as an inferior officer, exercised authority as a principal officer in violation of the Appointments Clause. The court disagreed, pointing to the Fiscal Assistant Secretary's work, including the work on the new rule, which "is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate."
As to review of state judgments, the plaintiffs argued that the new rule permits Treasury to judge the due process and sufficiency-of-evidence in state court proceedings under the three prongs listed above. But the court said that "[t]wo bodies of law are at issue: a state law of escheat and a federal law of bond ownership," and that "[s]tate court judgments are final regarding the former, but Treasury--by operation of the Supremacy Clause and pursuant to its statutorily-delegated authority--may promulgate rules to define the latter." The court also said that Treasury's due process review is not aimed at implementing constitutional protections (as an appellate court might), "but at facilitating reliable determinations of abandonment."
Finally, as to the Tenth Amendment, the court said that Treasury promulgated the rule pursuant to statutory authority from Congress, enacted within Congress's constitutional authority, and so the rule raised no Tenth Amendment problem.
(The court also rejected the plaintiffs' APA claim.)
Tuesday, October 11, 2016
In a sweeping endorsement of the unitary executive theory, the D.C. Circuit ruled today in PHH Corp. v. CFPB that the Consumer Financial Protection Bureau is unconstitutional. But at the same time, the court limited the remedy to reading out the "for-cause" termination provision for the director and turning the Bureau into an ordinary executive agency.
The ruling allows the Bureau to continue to operate, but, unless the ruling is stayed pending the inevitable appeal, removes the for-cause protection enjoyed by the director. Because that for-cause protection is what makes the CFPB "independent," the ruling turns the Bureau into a regular executive agency, with a single head that enjoys no heightened protection from removal.
In an opinion by Judge Kavanaugh, the court ruled that the single head of the Bureau, terminable only for cause, put the Bureau outside the reach of the President, in violation of Article II. The court said that this feature of the Bureau--single head, terminable only for cause--meant that there was no political accountability for the Bureau, and no check on the director's actions. (The court contrasted this single-head structure with a board structure in an independent agency, where, according to the court, the members could check each other.) The court also said that the single-head structure cuts against the historical grain--that we've never done it that way. Here's a summary:
The CFPB's concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency. The overarching constitutional concern with independent agencies is that the agencies are unchecked by the President, the official who is accountable to the people and who is responsible under Article II for the exercise of executive power. Recognizing the broad and unaccountable power wielded by independent agencies, Congress and Presidents of both political parties have therefore long endeavored to keep independent agencies in check through other statutory means. In particular, to check independent agencies, Congress has traditionally required multi-member bodies at the helm of every independent agency. In lieu of Presidential control, the multi-member structure of independent agencies acts as a critical substitute check on the excesses of any individual independent agency head--a check that helps to prevent arbitrary decisionmaking and thereby to protect individual liberty.
Emphasizing a unitary executive, the court wrote at length, and disapprovingly, about how the director is entirely unaccountable. But this ignores the fact that the for-cause termination provision does not mean "never able to fire." It also ignores other ways that a President can influence the Bureau, outside of just firing the director at will. And it also ignores other checks on the office, like statutory authorities and restrictions, congressional oversight, and (ironically) judicial review of CFPB actions (although these are obviously not presidential checks on the Bureau).
After ruling the CFPB unconstitutional--but saving it by striking only the for-cause termination provision for the director--the court went on to hold that the CFPB misapplied the Real Estate Settlement Procedures Act.
Judge Randolph joined the majority opinion and added that the ALJ who presided over the hearing (after the CFPB filed its charges) was appointed in violation of the Appointments Clause.
Judge Lecraft Henderson concurred in the court's statutory ruling, but argued that the court did not need to touch the constitutional question (because it could grant PHH relief under the statute alone).
This ruling is hardly the end of this case: it'll undoubtedly go to the Supreme Court.
Wednesday, August 10, 2016
The D.C. Circuit yesterday rejected a constitutional challenge to Security and Exchange Commission Administrative Law Judges, ruling that SEC ALJs are not "officers" or "inferior officers" whose appointments need to meet the requirements of the Appointments Clause.
The court also rejected a broadside attack against the way the D.C. Circuit analyzes whether any ALJ (SEC or not) is subject to the Appointments Clause.
The petitioner's challenge was novel and sweeping. A ruling in its favor could have been quite significant, potentially threatening the authority of SEC ALJs, certain ALJs in other agencies, and possibly even ALJs across the board (at least insofar as their appointments don't satisfy the Appointments Clause). But the petitioner's novel claims ran up against circuit law. The ruling is thus a decisive win, if not a totally unpredictable one, for the government.
The case turned on whether SEC ALJs are "officers" (who, under Article II, require presidential nomination and advice and consent of the Senate), "inferior officers" (who, under Article II, may be appointed by the President alone, the courts, or the head of a department, depending on what Congress says), or just employees (who are not covered by the Appointments Clause). Under circuit law, the line between "inferior officers" and employees, in turn, depends on (1) the significance of the matters resolved by the officials, (2) the discretion they exercise, and (3) the finality of their decisions.
The court said that decisions of SEC ALJs are not final under the third prong, and therefore SEC ALJs are employees, not subject to the Appointments Clause. That's because under the law the SEC itself makes the final decision, even if only by passively adopting an ALJ's decision. The court explained:
Until the Commission determines not to order review, within the time allowed by its rules, there is no final decision that can "be deemed the action of the Commission." As the Commission has emphasized, the initial decision becomes final when, and only when, the Commission issues the finality order, and not before then. Thus, the Commission must affirmatively act--by issuing the order--in every case. The Commission's final action is either in the form of a new decision after de novo review, or, by declining to grant or order review, its embrace of the ALJ's initial decision as its own. In either event, the Commission has retained full decision-making powers, and the mere passage of time is not enough to establish finality. And even when there is not full review by the Commission, it is the act of issuing the finality order that makes the initial decision the action of the Commission within the meaning of the delegation statute. . . .
Put otherwise, the Commission's ALJs neither have been delegated sovereign authority to act independently of the Commission nor, by other means established by Congress, do they have the power to bind third parties, or the government itself, for the public benefit.
The court went on to uphold the Commission's finding of liability and sanctions against the petitioner on other grounds.
Monday, July 18, 2016
Judge Ellen Segal Huvelle (D.D.C.) ruled last week in State national Bank of Big Spring v. Lew rejected a Recess Appointments Clause challenge to Consumer Protection Financial Bureau Director Richard Cordray. At the same time, the court declined to rule on the plaintiffs' separation-of-powers challenge to the Bureau itself.
The ruling is a decisive win for Director Cordray and actions he took during his period of recess appointment (before he was confirmed by the Senate). But it leaves open the question whether the CFPB itself it unconstitutional--a question that the D.C. Circuit could answer any day now.
This is just the latest case in a spate of challenges to Cordray's appointment and the CFPB. We posted on this case when the D.C. Circuit ruled that the plaintiffs had standing.
The plaintiffs argued that Director Cordray's recess appointment in January 2012 violated the Recess Appointments Clause. And they had good reason to think they were right: the Supreme Court ruled in NLRB v. Noel Canning that the President's recess appointments to the NLRB on the same day he appointed Cordray violated the Clause.
But Judge Huvelle didn't actually rule on that argument. That's because President Obama re-nominated Cordray in 2013, and the Senate confirmed him; he then (as validly appointed head of the CFPB) issued a notice in the Federal Register ratifying all the actions he took during his recess-appointment period. Judge Huvelle said that under circuit law the ratification cured any actions during this period that would have been invalid because of his invalid recess appointment.
But at the same time, the court punted on the plaintiffs' separation-of-powers challenge to the CFPB itself. That argument--which says that the CFPB invalidly combines legislative, executive, and judicial powers in the hands of a single individual--is currently pending at the D.C. Circuit in another case, PPH Corp. v. CFPB, and the court could rule any day now.
Judge Huvelle's ruling is a clear win for the CFPB and Cordray. But the real heart of opponents' claims against the Bureau are the ones now at the D.C. Circuit--that the CFPB violates the separation of powers.
Friday, April 15, 2016
The Ninth Circuit ruled yesterday in CFPB v. Gordon that Consumer Financial Protection Bureau Chief Richard Cordray had authority and standing to bring an enforcement claim against Chance Gordon, a California attorney and putative provider of home loan modification services.
The ruling is a win for the hotly contested CFPB and Cordray's authority during the period after his recess appointment but before his Senate confirmation.
President Obama initially appointed Cordray by recess appointment on January 4, 2012--the same day that he appointed three individuals to the NLRB by recess appointment, an act that the Supreme Court ruled invalid in Noel Canning. President Obama later renominated Cordray, and he was confirmed by the Senate on July 16, 2013. A month and a half later, the CFPB issued a Notice of Ratification, ratifying all of Cordray's actions from January 4, 2012, through July 17, 2013.
The CFPB filed a civil enforcement action against Gordon in July 2012, apparently in this ratification period. Gordon moved to dismiss for lack of standing and for a violation of the Appointments Clause. A split panel of the Ninth Circuit rejected his claims.
The court ruled first that Cordray's appointment has nothing to do with Article III standing, because executive enforcement is independent of Article III. The court explained:
Here, Congress authorized the CFPB to bring actions in federal court to enforce certain consumer protection statutes and regulations. And with this authorization, the Executive Branch, through the CFPB, need not suffer a "particularized injury"--it is charged under Article II to enforce federal law. That its director was improperly appointed does not alter the Executive Branch's interest or power in having federal law enforced . . . . While the failure to have a properly confirmed director may raise Article II Appointments Clause issues, it does not implicate our Article III jurisdiction to hear this case.
Moreover, the court held that Cordray's ratification cures any Appointments Clause deficiencies that might otherwise destroy the CFPB's enforcement action against Gordon. In other words, Cordray ratified all his prior actions after his recess appointment but before his Senate confirmation, including the civil enforcement action against Gordon, and that solved any problems that he might have had for actions taken during that period.
Judge Ikuta dissented, arguing that because Cordray's recess appointment was invalid, "no one could claim the Executive's unique Article III standing. Because the plaintiff here lacked executive power and therefore lacked Article III standing, the district court was bound to dismiss the action."
Tuesday, August 11, 2015
The D.C. Circuit ruled that the new Copyright Royalty Board, reconstituted after the court previously held that the old Board violated the Appointments Clause, did not itself violate the Appointments Clause after it came to the same decision as the old Board using the same record. The ruling upholds the new Board's decision to impose a $500 per station or per channel annual minimum fee for collegiate Internet radio stations.
The Copyright Royalty Board was originally composed of three Copyright Royalty Judges who were appointed by the Librarian of Congress and could only be removed for cause. The Board imposed the $500 fee on webcasters in 2011. Intercollegiate Broadcasting System, a nonprofit that represents college and high school radio stations, challenged the fee, arguing that the Board violated the Appointments Clause. The D.C. Circuit agreed, ruling that the judges had sufficient authority and independence to qualify as principal officers, thus requiring Presidential appointment and Senate confirmation. The court cured the defect by severing the statutory provision that barred the Librarian of Congress from removing the judges without cause.
The Librarian then replaced the Board with new members. The new Board decided to re-determine the copyright terms based on the existing record (the one that the parties established with the original Board) and to review the record de novo. The new Board issued the same $500 fee, and Intercollegiate again appealed.
This time Intercollegiate argued that the new Board was tainted by the old Board's decision, and thus the new Board also violated the Appointments Clause. The court flatly rejected this argument. Among other things, the court noted that the parties themselves set the record with the old Board, and the new Board re-decided the case on its own terms, without taint from the original Board.
The ruling is consistent with circuit law that a body reconstituted to comply with the Appointments Clause does violate the Appointments Clause simply because the original body did.
Wednesday, August 5, 2015
The D.C. Circuit ruled in Dodge of Naperville v. NLRB that the NLRB's finding of an unfair labor practice against the petitioner was valid, and that the Board didn't lack quorum to act in the waning days of Member Craig Becker's recess appointment.
The ruling means that the NLRB's finding stands.
The petitioners challenged the NLRB finding on the merits and based on the NLRB's lack of quorum at the time it issued its finding. As to the latter, the petitioners argued that the NLRB had only two members (one shy of quorum) when it issued its opinion on January 3, 2012, because the appointment of Member Becker (who was recess appointed in the second session of the 111th Congress) expired on December 17, 2011. That's the date when the Senate agree to adjourn and convene for pro forma sessions only every Tuesday and Friday until January 23, 2012.
But the court flatly rejected this argument. The court said that Member Becker's appoint was valid until "the end of their next session"--that is, until noon on January 2, 2012. The court, citing Noel Canning, said that "the end of an annual session is triggered by a recess only if the Senate adjourns sine die--that is, without specifying a date to return." But under the Senate's adjournment plan, the body convened every few days after December 17, making the short breaks between meetings intra-session recesses--and not end-points for the prior session.
The court rejected the petitioners' argument that maybe the Board's opinion issued after noon on January 3, because the petitioner only raised this point for the first time on reply.
Monday, November 10, 2014
The D.C. Circuit today upheld an appointment to the NLRB on the first day of a 17-day intra-session recess of the Senate for a vacancy that existed before the recess. The case is an application of the Supreme Court's ruling last Term in Noel Canning--and it shows why all three parts of that ruling matter.
The case was a challenge to an NLRB decision based on lack of quorum, just like Noel Canning. In particular, the appellants, Stevens Creek Chrysler Jeep Dodge, argued that President Obama's appointment of Gary Becker to the Board violated the Recess Appointment Clause, because President Obama made the appointment to an already-existing vacancy on the first day of an intra-session recess.
The D.C. Circuit said that the recess appointment authority extends to intra-session recesses and to vacancies that already existed at the time of the recess, based on two of the holdings in Noel Canning. The court also said that the 17-day recess here was longer than the 10 days that the Supreme Court identified as enough to constitute a "recess."
Breaking a little new ground, however, the court also said that it didn't matter that Becker's appointment came on the first day of this 17-day recess. That's because, under historical examples that the Court relied upon in Noel Canning, the "lawfulness of a recess appointment depends on the ultimate length of the recess . . . not the number of days from the start of the recess to the appointment."
But don't count on this to shift the balance of power back to the President (by allowing him to recess appoint on the first day of any open-ended recess). Instead, it'll only mean that the Senate, if it wants to foil the use of the recess appointment power, won't have an open-ended recess; it'll define the recess and use pro forma sessions (as it did in the recess leading to Noel Canning).
Tuesday, September 9, 2014
The Senate Health, Education, Labor and Pensions Committee held a hearing today on President Obama's nomination of Sharon Block to the NLRB. Block was one of the recess-appointees to the NLRB that the Supreme Court struck this summer in Noel Canning. Her nomination this time is going through the regular Appointments Clause process.
If confirmed, Brown would replace Nancy Schiffer and become the third Democrat on the five-member Board.
Republicans oppose Brown because of her political ideology and the direction of the Board with President Obama's appointments. They also see her appointment as an end-run around Noel Canning (given that Noel Canning struck her recess appointment).
Still, the full Senate will likely confirm her. That's because of the filibuster rules change that allows most presidential nominees to move forward to an up-or-down majority vote in the Senate.
Of course, if nominees like Brown hadn't faced a Republican filibuster in the first place, President Obama wouldn't have recess-appointed them; instead, they would have been confirmed through the ordinary appointment process--exactly what's happening to Brown now. In that way, after all the drama and attention to President Obama's recess appointments in Noel Canning, we're right back where we might have started: majority (not super-majority) confirmation of presidential nominees through the ordinary appointment process.
Thursday, August 28, 2014
The Tenth Circuit yesterday upheld an NLRB order by a Board panel that included Craig Becker, one of President Obama's recess appointments to the Board. The court suggested that the parties might have challenged the NLRB order under the Supreme Court's ruling this summer in Noel Canning (which held that President Obama lacked authority under the Recess Appointment Clause to appoint certain members to the Board). But because the parties didn't raise the argument--and instead actively steered the court away from the point--the court didn't rule on the Board's quorum, and instead upheld the order on the merits.
The order at issue came from an NLRB panel that included Craig Becker, a recess appointee during a two-plus week recess of the Senate. The Supreme Court wrote in Noel Canning that a Senate recess less than ten days is "presumptively too short" to allow the President to make an appointment pursuant to the Recess Appointment Clause. Under that language, Becker's appointment isn't presumptively invalid. But the Tenth Circuit also suggested that it wasn't necessarily valid:
To be sure, the Supreme Court stopped short of validating every appointment made during a recess ten days or longer. One might even read the majority opinion as leaving the door open for future challenges to some such appointments: from the proposition that shorter than ten days is usually too short it doesn't follow that ten days or longer is always enough.
Still, the court didn't touch the issue, because the parties didn't argue it. ("We don't often raise arguments to help litigants who decline to help themselves, especially when the litigants have consciously waived the arguments by steering us away from them and toward the merits instead.") Instead, the court upheld the order on the merits.
Thursday, June 26, 2014
Richard Trumka, head of the AFL-CIO, put out a statement today in reaction to the Court's ruling in Noel Canning, which struck President Obama's recess appointments to the NLRB. He said, correctly, that "[t]he impact of today's ruling is far less than it might have been, because there is now a full complement of Senate-confirmed members of the NLRB and a Senate-confrimed NLRB general counsel."
But there's another reason that the impact of today's decision is less than it might have been: the Senate's limitation on the use of the filibuster. That limitation, a Senate rules change from last fall, should also blunt today's ruling. That's because the President won't have to use recess appointments as much to dodge Senate minority obstruction on nominees, because the principle tool for that obstruction, the filibuster, is now limited to legislation and Supreme Court nominees, not executive nominees and lower federal judges.
Sean Higgins at the Washington Examiner makes a similar point, and argues that the ruling today is merely a set-back for unions at the NLRB (because they'll have to relitigate all the cases the NLRB decided with its recess-appointees). (This applies to other agencies, too, with recess appointees that are invalid under today's ruling.) The bigger fight, over the filibuster and actual appointees to the NLRB, has already been won by the President.
The Supreme Court today in NLRB v. Noel Canning gave a broad reading to the Recess Appointment Clause, but nevertheless struck President Obama's recess appointments to the NLRB, ruling that the Senate was in session. The ruling means that the NLRB lacked a quorum when it issued an order to Noel Canning, a Pepsi distributor, and that order is invalid. It's not clear yet how many other offices may be affected by the ruling. Our oral argument review (with a link to our preview) is here.
The ruling hands a defeat to President Obama in the short run (on the NLRB appointments), and, despite the broad reading of the clause, may hinder presidents in the future. That's becuase the Court said that the Senate is in session when it says it is, provided that it retains power to act, as it did here. That means that even when the Senate meets in pro forma sessions, as here, presidential appointments have to follow the usual course and get Senate confirmation (instead of dodging Senate confirmation through the recess appointment mechanism). As a result, the Senate can frustrate a president's ability to recess-appoint a nominee by going into pro forma sessions (again, with the ability to act), thus forcing a president to gain Senate confirmation (which, as we've seen, may be a difficult or impossible task).
The Court said that any session more than 3 days but shorter than 10 days is presumptively too short to constitute a recess of the Senate and thus to allow a recess appointment. And again: the Senate gets to say, presumptively, when it's in recess.
As to a recess over 3 days: the Adjournment Clause (Art. I, Sec. 5) allows the House to prevent a recess of the Senate. This gives even the House the power to block a recess--and recess appointments--for any period over 3 days. That means that the House could block a recess appointment by denying the Senate consent to recess.
Because the Senate was in session when President Obama made the NLRB appointments--because it said it was, and because it retained power to act, even if it was in pro forma sessions--the Court ruled them invalid.
At the same time, the Court handed the executive branch a victory on its broader reading of the Recess Appointments Clause. Thus the Court ruled that a "recess" includes both inter-session recesses and intra-session recesses. It also ruled that "vacancies that may happen during the recess of the Senate" include vacancies that first come into existence during a recess and vacancies that initially occurred before a recess but continued during the recess.
The judgment striking the NLRB appointees was unanimous. But Justice Scalia wrote a concurrence, joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Scalia wrote that the majority went too far in reading a broader Recess Appointment Clause and relied too heavily on prior presidential practice:
To reach [its] result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a dimunition of this Court's role in controversies involving the separation of powers and the structure of government.
June 26, 2014 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (2) | TrackBack (0)
Tuesday, January 14, 2014
The Senate voted yesterday 55 to 43 to confirm Robert L. Wilkins to serve on the U.S. Court of Appeals for the D.C. Circuit. WaPo reports here. The confirmation marks the third time since the Senate abolished the filibuster for executive and lower-court nominees that the body voted by a bare majority to confirm one of President Obama's nominees to this court. We last posted on the issue here.
Monday, January 13, 2014
The Supreme Court heard oral arguments today in NLRB v. Noel Canning, the case testing whether the President may make recess appointments to positions already vacant during an intra-session recess of the Senate. Our argument preview is here.
The Court today was especially sensitive to the many thorny doctrinal, practical, and political issues in the case, and seemed to be looking for a simple solution that would dodge them. The ordinary appointments process (with advice and consent of the Senate), as suggested by Chief Justice Roberts and Justice Ginsburg (see below), may well be that solution. If so, the Court might read the Recess Appointments Clause more restrictively in this case, limiting the President's recess-appointments authority, and giving more power to the Senate to hold up executive appointments by declining to recess.
The case presents three questions about the Recess Appointments Clause:
1. Does "the Recess of the Senate" include intra-session breaks, or recesses?
2. Do "Vacancies that may happen during the Recess" include vacancies that already existed?
3. Can the President exercise the recess-appoitnment power when the Senate convenes only every three days in pro forma sessions?
The arguments included the predictable points on text and history--interpretations of "the Recess," the clause "may happen," and historical practices and understandings. (If anything, these arguments only revealed how indeterminate and contestable these sources can be. See, e.g., the discussion on the OED's definitions of "happen" starting at about page 60 or so of the transcript, and the points over practices running throughout the arguments.) The particular concern with the words "may happen" suggest one possible outcome: the Court could rule that while "the Recess" includes intra-session recesses, "may happen" extends only to vacancies that occur (not already exist) during a recess.
But the more interesting--and probably more important--points were on balance-of-powers principles and practical implications--against the obvious backdrop of partisan politics.
Indeed, what started in the briefing as a debate principally about the meaning and practice of the Recess Appointment Clause turned quickly today into a debate about executive power and whether the Senate encroached on executive recess-appointment power by meeting in pro forma sessions and thus denying the President a recess in which to make recess appointments. General Verrilli pushed the argument on executive authority beyond a mere point on when the Senate is in "recess," claiming broadly that the President should get to fill all vacancies. Justice Alito put a fine point on it:
But you are making a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not. You're just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the President must be able to fill those--fill those positions. That's what you're arguing. I don't see what that has to do with whether the Senate is in session.
But Noel Canning and the Senate Minority Leader both took aggressive positions the other way, saying that the Senate gets to decide when it's on recess--even saying that it's never on recess--thus severely limiting the President's recess appoitment power. Respondents argued that the President has come to use the recess appointment power to deal with Senate intransigence, not emergencies--an argument that seemed to resonate with the Court.
Chief Justice Roberts and Justice Kagan both seemed concerned that such an important balance-of-powers issue could turn on magic language in a Senate resolution, for example, as here, that says "No business shall be conducted." Chief Justice Roberts said that this maybe made the point not so important. Justice Kagan said that focusing on the phrasing of a Senate resolution could just land the case back at the Court, and that focusing on this kind of formalism suggests that it really is the Senate's responsibility to determine when it's in session or not. But General Verrilli responded that the recess appointment power is an executive authority, "[a]nd the President has got to make a determination of when there's a recess"--that the Senate's use of pro forma sessions to stay in session (and not on recess) is an encroachment on Article II Recess Appointment power.
The Court was also concerned about how to balance text against practice. Justice Scalia posed this question:
What do you do when there is a practice that--that flatly contradicts a clear text of the Constitution? Which--which of the two prevails?
General Verrilli responded:
The answer is I think, given this--a practice going back to the founding of the Republic, the practice should be--the practice should govern, but we don't have that here. This provision has been subject to contention as to its meaning since the first days of the Republic.
Justices Alito and Kagan asked the same question to Noel Canning, and got the exact opposite answer.
The Court was also concerned about a related problem: If the government gets its way, it appears that the Senate violated the 20th Amendment and the Adjournment Clause. Justices Breyer and Alito both suggested that the Court would rather avoid that conclusion.
These more theoretical issues are serious, to be sure, but they may not be necessary to resolve the case. The Court was equally, or more, concerned about the practical implications of the case--in particular, how a ruling could affect already-made decisions by the NLRB, other government agencies, and even the courts (because of recess-appointed judges). Chief Justice Roberts and Justices Sotomayor and Ginsburg asked about this; Justice Scalia suggested a way out of this problem, the de facto officer doctrine; still General Verrilli said that "it certainly casts a serious cloud over the legitimacy of all those actions."
Also focusing on the practical aspects of the case, Chief Justice Roberts and Justice Ginsburg both wondered why the President couldn't just use the ordinary appointment process (and why the Senate couldn't decline to confirm)--in other words, why the government says that the pro forma sessions and lack of intra-session recess appointment power is a problem. Justice Scalia pointed out that the President can convene Congress (under Article II, Section 3, "He may, on extraordinary occasions, convene both houses"), and that Congress can get back within a day or so to deal with appointments.
Finally, Justice Breyer and Justice Kagan both asked about the politics--the shifting positions of the parties, depending on who is in the White House, and the President's use of the recess appointment power to deal with congressional intrasingence, not emergencies. General Verrilli responded that the Senate's advice-and-consent role is much larger today than the framers anticipated, and that today it encroaches on the President's appointment power--trying to take the case out of ordinary politics and place it back in larger balance-of-powers issues.
January 13, 2014 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Friday, January 10, 2014
The Supreme Court will hear oral arguments on Monday in NLRB v. Noel Canning, the case testing the President's recess appointment power. In particular, the case tests whether the President can make a recess appointment during a prolonged intra-session recess of the Senate in which the Senate sits in pro forma sessions every three days. We most recently posted on the case here.
Here's a preview, reprinted, with permission, from the ABA Preview of United States Supreme Court Cases:
The National Labor Relations Board, or the NLRB or the Board, consists of five members who are appointed by the president and confirmed by the Senate. Three members constitute a quorum, and without three or more members the Board cannot adjudicate cases involving unfair labor practices under the National Labor Relations Act.
On January 3, 2012, Board membership fell to two members. The next day, on January 4, 2012, President Obama sought to fill the three vacancies with recess appointments pursuant to the Recess Appointments Clause of the Constitution. That Clause allows the president “to fill up all Vacancies that may happen during the Recess of the Senate,” without obtaining the usual advice and consent. Thus President Obama purported to appoint Sharon Block, Terence F. Flynn, and Richard F. Griffin to seats that had become vacant on January 3, 2012, August 27, 2010, and August 27, 2011, respectively. The appointments, if valid, would have completed the five-member NLRB. (Two Board members, Chairman Mark G. Pearce and Brian Hayes, were confirmed by the Senate on June 22, 2010. Neither party disputes the validity of their appointments.)
President Obama purported to use the recess appointment power, because at the time the Senate was not meeting regularly. Instead, the Senate was operating pursuant to a unanimous consent agreement that provided that the Senate would meet in pro forma sessions only, “with no business conducted,” every three business days from January 3, the beginning of the second session of the 112th Congress, to January 23, 2012. The agreement said that each pro forma session would be followed immediately by another adjournment. The agreement meant that no senators were required to attend, except the one who gaveled in and out each pro forma session. (A previous and similar unanimous consent agreement ran from December 17 to January 3, 2012. The Senate interrupted that agreement once, on December 23, 2011, to pass a temporary extension to the reduced payroll tax.)
On February 8, 2012, a three-member panel of the Board, composed of Block, Hayes, and Flynn, affirmed the findings of an NLRB administrative law judge (ALJ) that Noel Canning engaged in an unfair labor practice. (The ALJ found that Noel Canning refused to execute a written collective bargaining agreement incorporating terms, related to wages and pension, that the union and Noel Canning agreed upon during contract negotiations. The ALJ found that Noel Canning’s refusal to execute an agreement violated §§ 8(a)(1) and (5) of the National Labor Relations Act.) Noel Canning appealed to the United States Court of Appeals for the D.C. Circuit, challenging the NLRB’s decision on its merits, and arguing that the Board could not act lawfully because it lacked a quorum. The court rejected Noel Canning’s arguments on the merits, but ruled that the NLRB lacked a quorum, and therefore did not act lawfully, because President Obama’s appointments violated the Recess Appointments Clause.
The Board sought review in the Supreme Court, presenting two questions that had been decided by the court of appeals. The Supreme Court granted review and directed the parties also to address “[w]hether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”
The Recess Appointments Clause, Article II, Section 2, Clause 3 of the Constitution, provides that “[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 Clause is designed to allow the president to fill vacancies that would otherwise require the advice and consent of the Senate when the Senate is not available to provide advice and consent. This case tests the pliability of that Clause.
The parties’ arguments turn on the plain language, meaning, and history of the Clause and presidential practice. In particular, the parties dispute (1) whether the Senate was on “the Recess” on January 4, 2012, when President Obama appointed the three members of the NLRB, (2) whether the vacancies on the NLRB “happen[ed] during the Recess of the Senate,” and (3) whether the president can exercise his recess-appointment authority when the Senate is convening every three days in pro forma sessions.
On each question, the parties also wrangle over separation-of-powers principles. In short, the government argues that the Senate should not be able to frustrate the president’s constitutional duty to execute the laws by holding up appointments by recessing with only pro forma sessions. Noel Canning counters that the president’s position represents a dramatic power grab over the recess appointment authority, at the expense of the Senate.
What is “the Recess”?
The government argues that the phrase “the Recess” applies to both an inter-session recess (that is, one between sessions of Congress) and an intra-session recess (that is, one during a session of Congress, as here). The government says that the definite article “the” does not change that. It contends that “the” is commonly used to refer to a category of events (and not a particular event, like “the [only inter-session] Recess”), even elsewhere in the Constitution itself. It also claims that the phrase “the Recess” was, by 1787, regularly used to describe the equivalent of intra-session breaks of the British Parliament, state legislatures, the Continental Congress, and even the Constitutional Convention.
The government argues that excluding intra-session recesses from the Clause would undermine its purposes. In particular, the government says that excluding intra-session recesses would prevent the president from filling vacant offices, and thus exercising his constitutional responsibility to take care that the laws be faithfully executed, whenever the Senate is unavailable to provide advice and consent for a significant period of time.
Finally, the government claims that long-standing practice supports intra-session recess appointments throughout the nation’s history, and even before 1943. (The government particularly takes on the court of appeals’ assumption that there were only a handful of intra-session recess appointments before 1943, suggesting that presidents before 1943 thought they lacked the power to make them.) The government says, contrary to the court of appeals’ assumption, that presidents made intra-session recess appointments “in every year before 1943 in which there was an intra-session recess of significant duration.” It claims that “[a]t least fourteen Presidents have, collectively, made at least 600 civilian appointments (and thousands of military ones) during intra-session recesses.” And it contends that the practice was endorsed in a 1921 attorney general opinion and described as “the accepted view” in a 1948 comptroller general opinion. It says that nearly all presidents after President Truman made intra-session recess appointments, and that opinions of the attorney general, the Office of Legal Counsel, and the United States Court of Appeals for the Eleventh Circuit all reaffirmed the validated of intra-session recess appointments during that most recent period.
Noel Canning argues that the plain language of the Clause means that the president can exercise his recess appointment power only during inter-session recesses. Noel Canning claims that the Clause links “the Recess” with the “next Session,” so that “the Recess” refers only to inter-session breaks. It says that the Clause makes “the Recess” and the “Session” alternating states, so that “the Recess” must fall between “Session[s],” that is, formal, numbered Sessions of the Senate (and not daily “sessions”). Stated only slightly differently, Noel Canning contends that the plain language means that the Senate cannot be in “the Recess” and “the Session” at the same time—a condition necessary to support the government’s reading.
Noel Canning argues that the original understanding and historical practice support its plain reading of the Clause. It says that its reading is supported by “every executive or congressional official to construe the Clause prior to 1948,” by early commentators, and by other ratification-era documents and provisions. As to the historical practice, it claims that no president other than Andrew Johnson even attempted to make a recess appointment during an intra-session recess before 1921.
Finally, Noel Canning argues that the government’s position is not supported by the text, original meaning, or historical practice. Instead, it contends, the government’s position is simply the latest in a relatively recent series of increasingly aggressive assertions by the executive branch of mid-session recess appointment power.
Did the Vacancies Happen During the Recess?
The government argues that the Recess Appointments Clause authorizes the president to fill vacancies that exist during the recess, and not just those that arose during the recess. The government claims that the phrase “Vacancies that may happen during the Recess” is ambiguous (as recognized by President Jefferson in 1802 and by Attorney General Wirt in 1823), but can reasonably be read to include vacancies that exist during the recess. It says that this reading best serves the Clause’s purposes, to allow the president to fill all vacancies that occur. It claims that the contrary reading would cause offices to remain vacant “solely because prior occupants died or resigned—or those offices were first established—shortly before, rather than shortly after, a recess began.
The government also argues that long-standing practice supports this reading. The government says that since the 1820s, the vast majority of presidents have made recess appointments to fill vacancies that arose before a recess and existed during the recess. It claims that this practice was supported by a series of attorney general opinions and every court of appeals prior to the D.C. Circuit’s ruling here. The government says that before 1823, contrary to the court of appeals’ assumption, there was no settled understanding of this issue. But it contends that “there were indications from each of the first four Presidents—including actual appointments by Washington, Jefferson, and Madison—that recess appointments can indeed be used to fill vacancies that pre-existed the recess.”
Noel Canning argues that the plain text supports its position. In particular, it says that the Clause’s requirement that the vacancy must “happen during” “the Recess” means that the vacancy must arise during the recess. It says that the government’s contrary reading would erase the phrase “may happen during” from the Clause.
Noel Canning argues that its reading is supported by the original understanding and historical practice. It says that the first four presidents understood that the Clause was limited to those vacancies that arose during the recess, as did the Senate and numerous courts until the late nineteenth century. It contends that the executive branch’s longstanding practice “has been more equivocal than [the government] lets on,” and that the “Senate’s resistance more robust.” But in any event, it claims, that the political branches’ practices cannot override the Clause’s plain language and its structural protection against presidential overreach.
Did This Break Constitute a Recess?
The government argues that the Senate’s 20-day break, with only fleeting pro forma sessions in which no business was to be conducted, was a “recess” under the Recess Appointments Clause. The government claims that both the Senate (since 1905) and the president (since 1921) have formally recognized that the Senate is in “recess” under the Clause when the Senate’s members do not have to attend sessions and when the Senate cannot receive communications from the president or participate in making appointments. The government contends that these conditions held during the 20-day period here, notwithstanding the periodic pro forma sessions.
The government argues that the mere possibility that the Senate might have overturned its unanimous consent agreement, recalled its members, and conducted business cannot change this. The government contends that if that possibility alone meant that the president could not make a recess appointment, then the recess appointment power would be dormant anytime the Senate might come back into session, including during traditional inter-session recesses.
The government argues that historical practice does not support the use of pro forma sessions to prevent the president from making recess appointments. The government says that no president has acknowledged that pro forma sessions would prevent him from making a recess appointment, and that there is no settled presidential acquiescence in the practice of using pro forma sessions to frustrate a president’s use of the recess appointment power. Moreover, the government claims that the use of pro forma sessions by the House and Senate to comply with the Adjournment Clause (which prevents either house from adjourning for more than three days without the consent of the other) does not provide precedent for the Senate’s use of pro forma sessions here. The government says that the better view of this practice is that pro forma sessions do not satisfy the Adjournment Clause.
Finally, the government argues that the Senate’s use of pro forma sessions to frustrate the president’s exercise of his recess appointment power disrupts the balance of powers in Article II. The government says that this gambit—which the Senate has used since 2007 “to string together breaks in business lasting as long as 47 days”—would undermine the president’s constitutional duty to “take Care that the Laws be faithfully executed.”
Noel Canning argues that the president cannot make recess appointments when the Senate convenes pro forma sessions every three days. It claims that the Senate has used pro forma sessions for a variety of purposes since 1854 (including for Adjournment Clause purposes), that the executive has recognized the validity of those sessions, and that presidents have historically refrained from recess appointments during pro forma sessions. Noel Canning contends that the executive branch previously acknowledged that pro forma sessions count under the Clause, and that this administration previously “expressly recognized that pro forma sessions preclude recess appointments.” (At oral argument in New Process Steel v. NLRB, 130 S. Ct. 2635, in 2010, Neal Katyal, then Principal Deputy Solicitor General, said, in response to a question from Chief Justice Roberts on the recess appointment power: “I think our office has opined the recess has to be longer than 3 days.” But just four days later, President Obama made a recess appointment to the NLRB.)
Noel Canning argues that pro forma sessions are actual and legitimate Senate sessions, with the capability of conducting business. Noel Canning says that this is so regardless of whether members have to attend. It also claims that the president has no authority to second-guess the Senate’s internal operations, including its use of pro forma sessions.
This case threatens a key practice by presidents of both parties in filling executive vacancies in the face of an obstructionist Senate and ensuring the continued operations of executive departments. The appendices in the government’s merits brief, detailing recess appointments starting from the Washington administration, show just how widely this practice has been used—and how a rejection of the practice could threaten so many appointments and operations of the executive branch. The facts of this case well illustrate that threat: President Obama made his recess appointments to the NLRB in order to sidestep Senate obstructionism; without valid recess appointments, the NLRB would have had no authority to enforce the National Labor Relations Act.
But the case threatens more than just this particular NLRB. As the government writes in its certiorari brief, “[t]he decision potentially calls into question every final decision of the Board since January 4, 2012,” earlier Board orders, and the actions of “almost any federal officer who received a recess appointment during an intra-session recess, or who was appointed to fill a vacancy that did not first arise during the recess in which the appointment was made . . . .” Considering the number of recess appointments (again, identified in the appendices to the government’s merits brief), there may be numerous such actions across the federal bureaucracy.
On the other hand, the case threatens a key Senate tool in checking the president. The Senate’s practice of using pro forma sessions to frustrate the President’s use of the recess-appointment power could be a very effective way for some in the Senate (or even the House, by way of the Adjournment Clause, see below) to advance their own agendas by way of the appointment process.
Aside from its implications, this case marks the latest round in the escalating gamesmanship between both parties in Congress and the White House over executive nominees. That gamesmanship includes (as relevant here) the use of the filibuster in the Senate to frustrate presidential appointments; the president’s use of the recess-appointment power to sidestep a filibuster or other obstruction in the Senate; and congressional efforts to prevent the president from exercising the recess appointment power. Those efforts include pro forma sessions, as in this case, and even House efforts to prevent a recess in the Senate. (For example, in May and June, 2011, Republicans in the Senate and House urged the Speaker of the House John Boehner to “prevent any and all recess appointments by preventing the Senate from recessing for the remainder of the 112th Congress.” The House could do this, because the Adjournment Clause says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .” Between May 12, 2011, and the end of that year, no concurrent resolution of adjournment was introduced in either chamber, and as a result the Senate held pro forma sessions every three days during extended breaks (rather than going on “recess.”) This case is just the latest move in this escalating struggle over nominations.
But the case is probably somewhat less significant than it was just a few months ago. That’s because the Senate’s abolishment of the filibuster in late 2012 for executive and lower court appointments removed a significant block to appointments—one that spurred the president’s use of the recess appointment authority in the first place. If the abolishment of the filibuster continues to mean that the president’s nominees can get a vote in the Senate, the president may not need to resort to the recess appointment power as much. (This could change if the Senate and the White House are controlled by different parties, so that a bare majority of the opposite party in the Senate could reject a nominee, even without resorting to the filibuster.)
There is a way that the Court could dodge the issue entirely. At least one amici, Professor Victor Williams, argued at the certiorari stage and again at the merits stage that the Court should dismiss the case as a nonjusticiable political question. If the Court so ruled, it would reverse the circuit court’s ruling on the constitutional question. That would mean that President Obama’s recess appointments to the NLRB would be valid, and that the circuit court’s ruling on the merits (against Noel Canning) would stand.