In addition to Justice Kagan’s important jurisprudential point about a law’s original purpose (filling vacancies when Congress was unavailable) to it’s new purpose (the President getting around Senate “intransigence,”), she also nailed the weakness of the government’s position concerning the real reason behind the President’s position. And I think Kagan, combined with Alito and Ginsburg, actually shook up the SG, and took him off his talking points.

Here is the exchange.

JUSTICE KAGAN: General, would you agree that this clause now is not mostly used to deal with emergencies arising from congressional absence? That most modern Presidents — and I say this sort of going — going back to President Reagan, Presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved? You know, absence in this day and age -­ this is not the horse and buggy era anymore. There’s no real — there’s no such thing truly as congressional absence anymore. And that makes me wonder whether we’re dealing here with what’s essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.

Verrilli tried to change the topic, and cited Federalist 76 (Hamilton) to discuss concerns about how the “advice and consent” process would be seldom employed.

GENERAL VERRILLI: And that gets to the second point, which is that it may be true as a matter of raw power that the Senate has the ability to sit on nominations for months and years at a time, but that is 100 miles from what the Framers would have expected. If you look at what Hamilton said in Federalist 76 about the advice and consent role of the Senate, he said he thought it would be a power that was rarely exercised and would operate, if at all, invisibly or silently. And in the early days of the Republic, it was — advice and consent was a matter of days.

Of course, as Justice Alito points out, this argument has little to do with the recess appointment power, but is a collateral attack on the entire “advice and consent” doctrine. I don’t think Verrilli wanted to go here, but he was cornered.

JUSTICE ALITO: 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.

And now, Verrilli took Kagan’s lead, and cited “intransigence” as a reason to support the President’s position.

GENERAL VERRILLI: Well, I do — I think this — I think the recess power may now act as a safety valve given that intransigence, and that is actually quite consistent

 

This was a mistake, and I think he went off script here–and RBG called him out on how this was different from the position stated in his brief.

JUSTICE GINSBURG: But it isn’t — it isn’t tied then to the availability of the Congress, availability of the Senate. I think you said throughout your brief that the rationale for the recess power is the President must be able to have the government functioning and staffed even though — although the Senate isn’t — isn’t around. But now the — you seem in your answers to be departing from the Senate not available and making quite another justification for this. The Senate, I think to be candid, the Senate is always available. They can be called back on very short notice. So what is it that’s the constitutional flaw here? It isn’t — it isn’t that the Senate isn’t available. The Senate is available. It can easily be convened.

Verrilli employed a tact I’ve heard him use before when he is in trouble–he takes “half a step back”–and cites Federalist 51 (?!).

GENERAL VERRILLI: So let me take a half a step back, if I could, Justice Ginsburg, and answer that question in this way. You know, perhaps it sounds like this is an aggressive assertion of executive authority, but I’d ask the Court to think back to Federalist 51. And what the Framers were most concerned about was that Congress, in the separation of powers calculus, was going to amass authority and drain authority and energy from the Executive, and therefore, the Executive needed to be fortified against those actions by Congress.

You know the SG is in trouble when he responds to a question from Justices Ginsburg  about broad executive power by citing The Federalist.

The Chief continued to pile on the “intransigency” line.

CHIEF JUSTICE ROBERTS: But the compromise they settled on in moving away from that is that the President will nominate and the Senate, if it so chooses, can confirm a nominee. You spoke of the intransigence of the Senate. Well, they have an absolute right not to confirm nominees that the President submits. And it seems to me, following up on Justice Kagan’s point, you’re latching on to the Recess Appointment Clause as a way to combat that intransigence rather than to deal with the happenstance that the Senate is not in session when a vacancy becomes open.

This may have been an intentional departure from the briefs, but it does not seem to have panned out well. Verrilli is usually very careful to stay on script. I can’t quite explain this move.

Later Justice Breyer returned to the important question of what the purpose of the clause is, and noted that there is nothing in the history about this intransigence.

JUSTICE BREYER: I cannot find anything, so far, and I may have missed it — I’m asking — I can’t find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the President. To the contrary, Hamilton says that the way we’re going to appoint people in this country is Congress and the President have to agree. Now, that’s a political problem, not a constitutional problem, that agreement. And it was just as much true of President George Bush, who made six appointments that happened previously, as it is with President Obama, who’s made four. All right? So — so where — and he says this clause is a supplement, a supplement, to the basic clause to take care of the timing problem. So, what have I missed? Where is it in the history of this clause, in its origination, that it has as a purpose to allow the President to try to overcome political disagreement?

Justice Kagan continues to impress. Her questions are so sharp and probing. Her simple observation about “intransigence” lured the SG, and got at least four Justices (Alito, Ginsburg, Roberts, and Breyer) to perk up and ask follow-up questions on this point.