When the President made recess appointments to the NLRB and CFPB on January 4, 2012 he said, “We can’t wait to act to strengthen the economy and restore security for our middle class and those trying to get in it.” He didn’t mean that literally. Rather than saying, “we can’t wait,” it would have been more accurate for the President to say, “I don’t want to wait.”
In truth, his inability to fill these positions was due to partisan gridlock. The decision to make the recess appointments was born out of convenience for his political agenda, more than anything else. Of course he could wait. There was no pressing national emergency. Certainly, the President’s legislative agenda would be stymied, but we weren’t standing on the brink of collapse if the CFPB was not staffed. If others were nominated, or deals were reached, the positions would be filled. In fact, this is exactly what happened when the Senate eventually confirmed three members to the Board and Cordray to the CFPB. A deal was reached, and the political process worked out. This recess appointment should not have served as a “safety valve” for congressional opposition.
This principle was evident in Noel Canning v. NLRB.
As Justice Kagan noted during argument in Noel Canning, the recess appointment power was designed as something of an emergency power. If the President needed to fill a position urgently, and the Senate was back home, it was impossible. Thus the recess power kicked in. The power concerned “congressional absence,” not “congressional intransigence.”
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.
The recess appointment power gave the Executive a stopgap measure to deal with these emergencies. A provision that may have been designed to accommodate vacancies that arise during a lengthy break in Washington, has now been used in recent years to get around a Senate frustrating the President’s appointments (or what some may call “advice and consent.”). It is noteworthy that all 9 Justices accepted the notion that “congressional intransigence” did not equate to “congressional absence,” giving the President heightened Article II powers to engage in executive chicanery.
The Solicitor General said as much during oral argument in Noel Canning during this exchange with Justice Alito. Alito noted that the government’s argument was effectively 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
Think about this for a moment. He is citing not “congressional absence,” but “intransigence,” as a “safety valve” for the limitations placed on the President’s Powers. The President imagines that the Constitution has a “safety valve” that he can release whenever Congress doesn’t give him what he wants.Such an impetuous and reckless vision of the Constitution is disturbing. (To venture into a related debate, this was likely the government’s most “extreme” position argued before the Supreme Court in Noel Canning.)
It is truly in keeping with the President’s actions in many other contexts. The Senate won’t confirm my nominees, so I’ll wait for a three day break and appoint them myself. Congress won’t pass the Dream Act, so I’ll implement DACA. Congress won’t help me fix Obamacare, so I’ll rewrite the law myself. Congress won’t give me the authorization to bomb Libya, and my DOJ told me I can’t do it, so I’ll ask Harold Koh for a memo and bomb away. This flagrant, and consistent disregard for the political process, when something gets in his way represents a clear and consistent patter of abuse.
In any event, Verrilli’s “safety valve” answer 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. 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.
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.
When Justice Ginsburg is faulting the Executive for an expansive vision of executive power, you know something is awry. RBG’s comments reflect the fact that the basis for this exertion of executive power is not necessity, but convenience.
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.
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 “intransigenc” 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.
The Chief’s point is devastating. Congress has no obligation to confirm nominees the President submits. The President disagreed, and appointed them anyway. Similarly, Congress has no obligation to enact the President’s preferred legislative agenda–healthcare, immigration, etc. The President disagreed, and accomplished the same by executive fiat. You see the clear problem here.
Making the same point was Justice Breyer, who 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?
Breyer would seem to view Congress, not getting along with the President, as a “political problem, not a constitutional problem.” Intransigence does not give the Chief Executive a license to expand his Article II powers, in the absence of some sort of constitutional crisis. “Political disagreement” is not enough.
The Court’s opinion in Noel Canning made this point, emphatically. Stated simply, gridlock and congressional intransigence is not a license to expand executive powers. That is part of the political ballgame. All 9 justices agree on this point.
Justice Breyer’s opinion found this forcefully. In the case of a “national catastrophe” the President may be able to exercise heightened executive powers. But “political opposition in the Senate would not qualify as an unusual circumstance.” Congressional intransigence is not an excuse to flex executive muscle.
We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is pre- sumptively too short to fall within the Clause. We add the word “presumptively” to leave open the possibility that some very unusual circumstance—a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response—could demand the exercise of the recess-appointment power during a shorter break. (It should go without saying—except that JUSTICE SCALIA compels us to say it—that political opposition in the Senate would not qualify as an unusual circumstance.)
Thankfully, Justice Scalia, who apparently egged the majority to make this point, states the Obama Administration’s position much more clearly. He emphatically rejects the Solicitor General’s admonition that the recess appointment power is a “safety valve” for “intransigence.”
The majority also says that “political opposition in the Senate would not qualify as an unusual circumstance.” Ibid. So if the Senate should refuse to confirm a nominee whom the President considers highly qualified; or even if it should refuse to confirm any nominee for an office, thinking the office better left vacant for the time being; the President’s power would not be triggered during a 4-to-9-day break, no matter how “urgent” the President’s perceived need for the officer’s assistance. (The majority protests that this “should go without saying—except that JUSTICE SCALIA compels us to say it,” ibid., seemingly forgetting that the appointments at issue in this very case were justified on those grounds and that the Solicitor General has asked us to view the recess-appointment power as a “safety valve” against Senatorial “intransigence.”
While Justice Breyer avoided the charge that the government made the exact argument he rejected, Scalia put it plainly. The Obama Administration has relied on “intransigence” as an excuse to make an otherwise invalid recess appointment. All 9 justices rejected this, 5 doing so with a rebuke towards the administraiton.
This brings us back to current debates about the scope of the President’s power. In recent remarks concerning executive action over immigrant, the President cites Congressional “gridlock” and “indifference” to passing the laws he wants as a reason why “we can’t afford to wait for Congress,” and a justification why “I’m going ahead and moving ahead without them.”
“I’m not going to let gridlock and inaction and willful indifference and greed threaten the hard work of families like yours,” Mr. Obama continued. “And so we can’t afford to wait for Congress right now. And that’s why I’m going ahead and moving ahead without them wherever I can.”
The President also added that “I’ll keep taking actions on my own” with all of this “obstruction.”
“Republicans in Congress keep blocking or voting down almost every serious idea. This year alone they’ve said no to raising the minimum wage, no to fair pay, no to student loan reform, no to extending unemployment insurance,” Mr. Obama said. “This obstruction keeps the system rigged for those at the top and rigged against the middle class. And as long as they insist on doing it, I’ll keep taking actions on my own — like the actions I’ve already taken to attract new jobs, lift workers’ wages and help students pay off their loans. I’ll do my job.”
In other words, “congressional intransigence” is the basis for his Article II powers. His “job,” he asserts, is to enact his agenda, even though the elected branches oppose it. This is dangerous. All of the Justices emphatically rejected this line of thinking. Congressional intransigence is not the same thing as congressional absence.
Likewise, other congressional democrats made similar points–the failure to enact laws gives the President this license.
“We’re at the end of the line,” Sen. Robert Menendez (D-N.J.) said Thursday during a press briefing in the Capitol. “We’re not bluffing by setting a legislative deadline for them to act.
“Their first job is to govern,” Menendez added, “and in the absence of governing, then you see executive actions.”
Sen. Dick Durbin (D-Ill.) piled on. Noting that a year has passed since the Senate passed a sweeping immigration reform bill with broad bipartisan support, he urged House Speaker John Boehner (R-Ohio) to bring a similar bill to the floor.
“I don’t know how much more time he thinks he needs, but I hope that Speaker Boehner will speak up today,” Durbin said. “And if he does not, the president will borrow the power that is needed to solve the problems of immigration.”
“If they don’t bring any bill to the floor, the president has no choice — on a humanitarian basis and on a policy basis — to act where he can on his own,” Schumer added.
So when Congress doesn’t pass the laws the President wants, the President “has no choice” and can “borrow the power” to “act on his own” “on a humanitarian basis and a policy basis.” Absolutely not. If one House does not bring bills to the floor, the remedy is to vote that party out of office. This is the political process. There is no Article II guarantee of enacting a preferred legislative agenda by fiat. The President certainly has a “choice.” But that “choice” is not to make laws, or not enforce others.
Congressional intransigence does not trigger a safety valve for executive power, and an excuse for the Constitution itself.
Update: I think an even more pressing example of broader executive power due to congressional intransigence was at stake in Youngstown Sheet & Tube v. Sawyer. There, the President sought to seize the steel mills. Congress, aware of the problem, did nothing. Now, Congress was in session and certainly was not “absent.” But they were, in every sense of the word “intransigent.” So, President Truman said, “I can’t wait,” and did it himself. Truman argued that during the time of war, his executive powers were heightened. The Court soundly rejected this argument. The President, even on the brink of a national emergency, during time of war, lacks the power to seize, through executive order, what Congress could have clearly done with legislation. I can’t stress enough that the Korean War was an actual emergency (even though the actual labor strike, which occurred after the case was decided, didn’t do that much damage). If the Korean War was not an emergency to justify the President exceeding his powers, than the “abstinence” and “intransigence” the President cites surely doesn’t suffice.