One of the funnier aspects of Noel Canning is how the tables have turned. Depending on which party controlled the White House, the minority party in the Senate opposed the recess appointment practice. Justice Scalia aptly summarizes the issue in his concurring opinion, where Senate Republicans blocked Senate Democrats from filing a brief, arguing that President George H.W. Bush’s recess appointments were invalid:
Later, many Senators sought to end intra-session recess appointments altogether. In 1993, the Senate Legal Counsel prepared a brief to be filed on behalf of the Senate in Mackie v. Clinton, 827 F. Supp. 56 (DC 1993), vacated in part as moot, 1994 WL 163761 (CADC 1994) (per curiam), but “Republican opposition” blocked the filing. 139 Cong. Rec. 15266–15267. The brief argued that “the recess[-appointment] power is limited to Congress’ annual recess between sessions,” that no contrary executive prac tice “of any appreciable magnitude” had existed before “the past fifty years,” and that the Senate had not “acqui esced in this steady expansion of presidential power.” Id., at 15268, 15270. It explained that some Senators had limited their objections to shorter intra-session breaks out of a desire “to coexist with the Executive” but that “the Executive’s subsequent, steady chipping away at the length of recess sufficient for making recess appointments ha[d] demonstrated the need to return to the Framers’ original intent and limit the power to intersession ad journments.” Id., at 15267, 15272.
You can find the entire brief, submitted to the Congressional record, here, with Senator Mitchell’s prefatory remarks:
Mr. MITCHELL. Mr. President, I had hoped today to offer a resolution to direct the Senate Legal Counsel to appear as amicus curiae in the name of the Senate in a case pending in the U.S. District Court for the District of Columbia on a matter of considerable importance to the responsibilities of the Senate under the Constitution. I had hoped that the resolution would receive bipartisan support because it concerns the Senate as an institution. Unfortunately, the resolution has been blocked by Republican opposition. I will briefly describe the matter involved.
The United States District Court for the District of Columbia is considering the constitutionality of a recess appointment to the Board of Governors of the U.S. Postal Service that President Bush made less than 2 weeks before leaving office. On January 8, 1993, while the Senate was recessed for 12 days between organizing and the inauguration of President Clinton, President Bush attempted to confer a recess appointment on Thomas Ludlow Ashley to replace Crocker Nevin, a Governor who had been appointed by President Reagan by and with the advice and consent of the Senate for a term ending on December 8, 1992. In accordance with the holdover provision of the postal law, Mr. Nevin’s appointment by President Reagan would have enabled him to remain as a Governor until no later than December 8, 1993.
As Scalia notes, Senator Ted Kennedy offered similar opposition to President George W. Bush’s recess appointments. Now, Senator McConnell has argued that President Obama’s appointments are invalid. The tables have turned.
Senator Kennedy reiterated that position in a brief to this Court in 2004. Brief for Sen. Edward M. Kennedy as Amicus Curiae in Franklin v. United States, O. T. 2004, No. 04–5858, p. 5. Today the partisan tables are turned, and that position is urged on us by the Senate’s Republican Members. See Brief for Sen. McConnell et al. as Amici Curiae 26.
One wonders if this case would have come out any differently, were it brought to the court during the Bush 43 administration. I hope not.