Plausible absurdities and practical formalities: the recess appointments clause in theory and practice.

• Author: Frisof, David

The recent controversy surrounding President Obama's recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate was holding pro forma sessions illustrates the need to reach a new understanding of the Recess Appointments Clause of the Constitution. For the Recess Appointments Clause to be functional, it must fulfill two essential constitutional purposes: it must act as a fulcrum in the separation of powers, and it must ensure the continued exercise of the executive power. Achieving this functionality depends not only on the formal constructions of the Clause but also on the ways in which powers conferred under the Clause are exercised--in other words, on the constitutional expectations that the president and the Senate bring to recess appointments practice. The practical constitutional expectations that have governed recess appointments practice have largely prevented the active use of the Clause's many textually plausible absurdities that would utterly disrupt the Clause's functionality. In light of the role that constitutional expectations play in the functionality, and therefore constitutionality, of the Clause, the recent pro forma appointments controversy should not be resolved by the courts. Instead, both the pro forma sessions held by the Senate and the pro forma session recess appointments made by the president present a nonjusticiable political question. By declining to decide the constitutionality of these actions, courts will provide the executive and legislative branch the opportunity to ensure agreement as to both the construction of the Recess Appointments Clause and the attendant constitutional expectations that assure its functionality.

TABLE OF CONTENTS INTRODUCTION I. FUNCTION AND DYSFUNCTION IN CONSTITUTIONAL CONSTRUCTION A. Function and Dysfunction B. Plausible Absurdities II. RECESS APPOINTMENTS AND CONSTITUTIONAL EXPECTATIONS A. Practical Formalities: Virtue as Constitutional Expectation B. Recess Appointments in the Modern Era and Pro Forma Destabilization III. PRO FORMA SESSIONS AND THE FUTURE OF THE RECESS APPOINTMENTS CLAUSE A. The Pro Forma Sessions and Pro Forma Session Recess Appointments B. Framing the Issue: Willful Ignorance Is Undeserved Bliss C. The Perils of Judicial Resolution on the Merits D. Political Question Doctrine: The Benefits of Deciding Without Deciding CONCLUSION [T]hat a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon courts the nurture of that spirit, that spirit in the end will perish.

--Learned Hand (1)

INTRODUCTION

On a blustery day in northeast Ohio in January 2012, President Obama announced the recess appointment of Richard Cordray, the former attorney general of Ohio, to the directorship of the Consumer Financial Protection Bureau. (2) On the same day, the president also announced that he was exercising his recess appointments power to appoint Sharon Block, Richard Griffin, and Terence F. Flynn to the National Labor Relations Board. (3) In making these appointments, the president employed his authority under the Constitution's Recess Appointments Clause, which enables him to make temporary appointments to senior executive branch positions and to Article III courts when the Senate is not in session and available to offer its advice and consent on the president's nominations.

Obama's decision to grant recess appointments to nominees that had been blocked by the Republican minority in the Senate was by no means unusual. While the Recess Appointments Clause was perhaps originally intended to ensure the continued functioning of the executive branch during the Senate's lengthy recesses, (4) presidents of both parties have exercised their constitutional powers under the Recess Appointments Clause for decades to appoint individuals blocked by opposing parties in Congress. (5) In fact, the president's appointments followed recent presidential practice and historical convention to the letter, except for one small detail: the Senate, according to its own proceedings, was not in recess.

On the date of Obama's appointments, the Senate was in the midst of holding pro forma sessions--sessions held purely to deny the president the ability to make recess appointments. Pro forma sessions had their genesis in 2007, when Democratic Senate Majority Leader Reid successfully used them to deny President Bush the ability to make any recess appointments during his last fourteen months in office. (6) Every three days, a senator would gavel the Senate to order only to adjourn the Senate a minute or two later, thereby carving a longer recess into a succession of shorter recesses and denying Bush a recess of the length sufficient to make a recess appointment. (7)

While the pro forma sessions of 2007 and 2008 had been the work of a Democratic Senate, a Republican House necessitated those sessions that stymied Obama's recess appointments power in August 2011 and attempted to do so again in December 2011 and January 2012. (8) Taking advantage of Article I, Section 5's requirement that "In]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days," (9) the Republican House, by refusing to consent to a recess with the Democratic Senate, forced the Senate to continue its pro forma sessions. (10)

As a practical matter, the pro forma sessions and the president's recess appointments notwithstanding, these sessions were merely the latest escalation of an increasingly dysfunctional presidential appointments process. In recent years, appointments to both Article III courts and executive agencies have ground to a halt, considerably impeding government functions. (11) As a constitutional matter, however, the Obama Administration's assertion that the president has the power to make recess appointments during pro forma sessions has resulted in a flurry of challenges. (12) Several courts of appeals have held these and other recent appointments unconstitutional. (13) By the time of this Note's publication, one such case, decided by the D.C. Circuit Court of Appeals, Noel Canning v. NLRB, will have been briefed and argued before the Supreme Court. In the decision below, the D.C. Circuit not only held that the president's appointments were unconstitutional but did so by holding that the president could make recess appointments only during intersession recesses and only when the vacancies had begun during that recess, (14) thereby upending long established, and previously uncontroversial, recess appointments practice.

Unlike other clauses in the Constitution, the Recess Appointments Clause has only occasionally been the subject of litigation. Until recently, both its place in the constitutional structure, as a minor fulcrum of the separation of powers between Congress and the president, and its relative unimportance, at least as compared with the likes of the Commerce Clause or the Equal Protection Clause, have only rarely made it the subject of judicial analysis. (15) Prior to the current controversy, interpretation of the Recess Appointments Clause has primarily occurred in opinions by attorneys general. (16) In the years leading up to the current controversy and in anticipation of the Supreme Court's forthcoming ruling on the scope of the Recess Appointments Clause, however, legal scholars have also weighed in on the Clause's meaning. (17)

Generally, interpreters of the Recess Appointments Clause have confronted three fundamental issues of constitutional construction. The Clause reads simply, "The 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." (18) First, it is unclear when a vacancy must "happen" to satisfy the Clause. Must the vacancy first "happen to arise" during the recess or need the vacancy only "happen to exist" during the recess? In other words, if a position becomes vacant while the Senate is in session but remains unfilled until the next recess, is the president then able to make a recess appointment to fill the vacancy? Second, what types of recesses are comprehended by the Clause? Are recess appointments permitted only during intersession recesses (recesses between distinct sessions of Congress), or are they also permitted during intrasession recesses (breaks during a session of Congress)? Third, can the president use the Recess Appointments Clause to make judicial appointments to Article III courts? (19)

Within this framework, the history of the president's power under the Recess Appointments Clause has generally been one of expansion. The earliest interpretations of the Clause were quite narrow, limiting recess appointments to positions that happened to become vacant during an intersession recess. (20) Later interpretations expanded the power, enabling presidents to make recess appointments regardless of when the vacancy first occurred (21) and without regard to the type of recess at issue. (22)

As with virtually all constitutional interpretation, interpreters of the Recess Appointments Clause support their preferred constructions with a constellation of arguments relying on the text of the Clause, (23) the purpose of the Clause within constitutional structure and separation of powers doctrine, (24) long-standing historical practice, (25) and changing political circumstances. (26) Despite wide divergence in methodologies and conclusions, most commentators agree on the Recess Appointments Clause's overarching, dual constitutional purposes: (1) maintaining a suitable balance of power between the president and the Senate, while (2) simultaneously enabling the president to ensure that the executive branch retains a continuous ability to execute the law when the Senate...