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Way back in January I queried whether–if the GOP took the Senate–the Harry Reid could ram through a series of nominations during the lame duck session. Now it seems that that Democrats are gearing up for pushing through a rash of midnight appointees.

“We will definitely move a lot of nominees during the lame duck one way or the other — possibly more if Republicans take the majority,” said a Democratic Senate leadership aide. …

Norm Ornstein, a congressional scholar at the American Enterprise Institute, said, “It would be crazy if [Senate Majority Leader Harry] Reid did not call them back as soon as possible and go into long hours, night and day, to process as many confirmations as he can.” But he cautioned that doing so “will inflame Republicans and drive them absolutely batshit.”

This strategy is looking all the more necessary as Senate Majority Leader Mitch McConnell may possibly deny *every single* Obama nominee a vote during the next two years. Sahil Kapur explores this possibility, quoting Randy Barnett and Roger Pilon, among others.

What if the Senate does not push through the lame duck nominations? Can the President turn to his recess power? No, not the intra-session power that was at issue in Noel Canning. The House will not let the Senate recess, and force it to hold pro forma sessions. What if he relies on the inter-session recess?

Professor Seth Barrett Tillman sent me this note:

The House and Senate must adjourn and recess sine die with the expiry of their last session at the end of any two-year congressional term. Then a new Congress will meet. That recess might last for a moment, and during it the President can make his recess appointments. That’s akin to what Theodore Roosevelt did in 1903, when he made 160 recess appointments during two back-to-back congressional sessions within the same two-year congressional term. Here, in January 2015, the “break” would be between two congresses — so, arguably, Obama’s position in regard to making such recess appointments is stronger than Roosevelt’s was.

See also Seth’s arguments in two papers for the Northwestern Law Review Colloquy, and two replies from Professor Brian Kalt.

Although the Court in Noel Canning rejected the idea of an intra-session break that was only three days long, it did not have the occasion to opine on the inter-session recess. Could the President seize the moment between sessions (if such a moment exists) to appoint judges or executive branch officials? Since this is his last term he won’t need them the latter to be confirmed again. But it would make a mess for judges, whose commission would expire in January 2017, right as a new President is entering Washington.

The next few months could be really interesting. Stay tuned.

Update: Christopher E. Mills writes in with two quotations from Noel Canning that may shed some light on the appropriateness of TR’s last-second appointments.

“Even the Solicitor General, arguing for a broader inter­pretation, acknowledges that there is a lower limit appli­cable to both kinds of recess. He argues that the lower limit should be three days by analogy to the Adjournments Clause of the Constitution. Tr. of Oral Arg. 11. That Clause says: “Neither House, during the Session of Con­gress, shall, without the Consent of the other, adjourn for more than three days.” Art. I, §5, cl. 4. … We agree with the Solicitor General that a 3-day recess would be too short.”

“There are a few historical examples of recess appointments made during inter-session recesses shorter than 10 days. We have already discussed President Theodore Roosevelt’s appointments during the instantaneous, ‘fictitious’ recess. . . . There may be others of which we are unaware. But when considered against 200 years of settled practice, we regard these few scattered examples as anomalies. We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause.”

The Court stopped short of saying the fleeting, inter-session recess was unconstitutional, and the SG seemed to agree that it may be too short, though there is no definitive ruling here.

Update 2: On a close read of the transcript, I don’t know that the Solicitor General took any position on whether the three-day limit should apply to the inter-session recess appointments. Here is the relevant exchange between the Solicitor General and Justice Kennedy on p. 11 of the transcript:

GENERAL VERRILLI: I think the ­­ the way we resolve that problem is by looking to the Adjournment Clause. We think, if it’s a break that is sufficiently short, that it wouldn’t require the –­­ wouldn’t require the one House to get the consent of the other, but that’s a de minimis recess, and that’s not a recess in which the President would have authority.

Verrilli’s answer is premised on one House not allowing the other to adjourn during an inter-session recess. The Senate does not need the House’s permission to adjourn between sessions of Congress. Therefore this answer is not responsive to inter-session recesses, even if the Justices’s questions asked about it.

Update 3: Christopher E. Mills notes that in the government’s merits brief, they only seem to focus on the three day floor with respect to intra-session recess, and not inter-session recesses.

The Adjournment Clause makes clear that the taking of a legislative break of three days or less “during the Session of Congress” is still an “adjourn[ment],” Art. I, § 5, Cl. 4, but the Executive has long understood that such short intra-session breaks—which do not genuinely render the Senate unavailable to provide advice and consent—are effectively de minimis and do not trigger the President’s recess-appointment authority. (page 18)

For more than 90 years, the Senate and the Executive have agreed on a functional understanding, under which short intra-session breaks of three or fewer days do not trigger the Recess Appointments Clause, but longer breaks can do so. (page 45)

In fact the SG recognizes that there were many inter-session recesses that were zero days long.

The Senate has had many inter-session re- cesses that were zero, one, or two days long (e.g., in March 1791, 1793, 1797, 1801, 1867, 1877, 1881, 1885, 1897, 1903, 1905, 1909, 1913, 1917, 1921, and 1925; in December 1903 and 1922; in January 1941, 1942, 1980, 1992, and 1996). S. Pub. 112-12, Official Congressional Directory, 112th Congress 522-535 (2011) (Congressional Directory), www.gpo.gov/fdsys/pkg/CDIR-2011-12-01/ pdf/CDIR-2011-12-01.pdf.6

Recently, Jeopardy! posed this question:

In 2014 the Supreme Court said that this chain of stores could refuse to pay for employees’ birth control.

The question begs Hobby Lobby. This is not entirely accurate. Of the 20 FDA-approved methods of contraception, Hobby Lobby only objected to four–Plan B, Ella, and two types of IUDs. Hobby Lobby had no problem with the birth control pill. This is a common misconception I clear up whenever I give a talk on Hobby Lobby.

In case you were wondering, here is the list of FDA-approved contraceptives Hobby Lobby covers.

And the products they do object to.

H/T Bob Steel

Since Chief Justice Roberts saved the Affordable Care Act as a constitutional tax, Senator Mitch McConnell has flirted with the idea of using the reconciliation process to repeal the law (see here and here). This process would only require 51 votes, and bypass the filibuster. (It is fitting that the ACA finally passed the Senate without a filibuster in the same manner). Of course any such bill would be dead on arrival by the White House.

Yet, McConnell continues to float this idea. Whether it is serious or not, should be separated from whether it is even possible.

Sahil Kapur at TPM talks to a former Senate parliamentarian, who suggests that while the entire law cannot be repealed by reconciliation, parts of it affecting the budget can.

One former longtime Senate parliamentarian said a majority leader could make a persuasive case for using reconciliation to repeal core components of Obamacare, many of which have budgetary impacts. That includes the premium tax credits that help lower-income Americans buy insurance. It might even include the individual mandate, given that the Congressional Budget Office has said scrapping the mandate would save money.

“One could argue that a proposal that says no funds shall be used to implement the Affordable Care Act is fit for reconciliation. Doesn’t that save money? That’s certainly a legitimate argument,” said the former parliamentarian, who asked not to be named. “It wouldn’t repeal the ACA but it could starve it to death.”

That sets up tension between the GOP’s establishment wing and the tea party wing. The McConnell-led wing want to repeal smaller items like the medical device tax, which they might have a chance of getting President Obama to sign. Tea party lawmakers want to rile up their base by going big and slashing as much of the law as possible, and daring Obama to veto their bills.

The big question is how far Republican leaders are willing to go, and whether they find the votes in the Senate and House to pass an anti-Obamacare bill and put it on Obama’s desk.

The President’s veto pen will be awfully busy the next two years.

In a famous interview with Jeff Rossen, Chief Justice Roberts explained his view of the Supreme Court as an “institution.” That is, the Court should not only be focused on deciding individual cases, but also view how it fits into the broader scheme of the separation of powers.

“If the Court in Marshall’s era had issued decisions in important cases the way this Court has over the past thirty years, we would not have a Supreme Court today of the sort that we have,” he said. “That suggests that what the Court’s been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up.” Roberts added, “I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy as an institution.”

It is perhaps this desire to think of the Court as an institution that led the Chief to voting the way he did in NFIB v. Sebelius, and his desire to promote a faux-unanimity in several cases last term.

In particular, Roberts declared, he would make it his priority, as Marshall did, to discourage his colleagues from issuing separate opinions. “I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.”

The Chief is not alone with this feeling. In recent remarks at Yale Law School, Justice Sotomayor explained that her greatest surprise upon joining the Court was her recognition of the importance of this institution, as a force greater than herself.

I was surprised by all of this as well. But for me, the tradition had one positive effect. It taught me that the Court as an institution was much more important than I was an individual Justice. That is a really important lesson for Justices to learn and live by. Sometimes the tradition is a little silly.

Although, Justice Sotomayor seems to draw a different conclusion, and is quite more likely than the Chief to issue separate opinions.

I had to do a serious double-take when I saw White House Press Secretary Josh Earnest (an apt name for a press secretary if there ever was one!) cited James Madison and states rights in response to a question about state ebola quarantines:

“You could take that up with James Madison,” White House press secretary Josh Earnest told reporters inquiring about why there isn’t a sole national standard for isolating people who might have Ebola. “We have a federal system in this country in which states are given significant authority for governing their constituents. That is certainly true when it comes to public safety and public health.”

Huh?????? Surely he can’t mean this. Surely he doesn’t think that matters of health law should remain the provence of the states? Obamacare? Surely this isn’t the same administration that argued in Arizona v. United States that states have no role in ensuring that immigration laws are enforced? Being earnest is important but this is ridiculous.

As the Weekly Standard noted, “Even the Associated Press couldn’t help but point out the hypocrisy. Directly after the Earnest quotation, reporter Josh Lederman wrote:”

That’s ironic, perhaps, coming from an administration that Republicans typically accuse of exceeding its legal authority on issues like immigration, health care and foreign policy.

I look forward to future mentions of James Madison from the White House press room.