During the fascinating House Rules Committee hearing over the proposed lawsuit over the delay of the Affordable Care Act’s employer mandate, Walter Dellinger and Elizabeth Price Foley sparred over whether the President could force Congress to do something. I think there is an asymmetry between the constitutional obligations of the President and the Congress that answers that question. Simply put, the President has a duty to “take care” that the laws are faithfully executed, but the Congress has no obligation to do anything.

From my new article, “Congressional Intransigence and Executive Power.”

The President has a constitutional duty to “take care that the laws [are] faithfully executed,” but the Congress has no similar duty to “faithfully enact” laws. Rather “Congress shall have the power” to make a number of laws, but need not do so. In fact, the Constitution is entirely silent about any obligation of Congress to exercise its powers. Likewise, while the President has the duty to appoint officials—he “shall nominate” executive branch officials —the Senate’s role is limited to “Advise and Consent,” which need not be given. When Congress refuses to pass laws the executive desires, or confirm nominees the President selects, we have a political, not a constitutional problem.

Therefore, the President would have no legal grounds on which to sue Congress to force them to do something, because they have no constitutional duty to act in the first place.

The Court made this point  emphatically clear in Noel Canning. The Senate has no obligation to confirm the nominees the President selects, or any office at all.

Justice Scalia emphatically rejects the Solicitor General’s admonition that the recess appointment power is a “safety valve” for “intransigence.” The decision to confirm appointees rests solely with the Senate: “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,” that is the Senate’s prerogative.” This conclusion echoes the Chief Justice’s comment during oral argument—the Senate has “absolute right not to confirm nominees that the President submits.” The President’s recess-appointment power “would not be triggered during a 4-to-9-day break,” Scalia stressed, “no matter how ‘urgent’ the President’s perceived need for the officer’s assistance.” While Justice Breyer avoided the charge that the government made the exact argument he rejected, Scalia put it plainly. The NLRB going “dark” is not a sufficient “national catastrophe” to justify bending the separation of powers.

So this would eliminate any threat of the President forcing the Congress to do something, because they have no such constitutional obligation in the first place.

Update: A point I didn’t make well–as reflected in a comment I added to the post later–was that Congress has no Article I duty to comply with the President’s agenda, in the same sense the President has an Article II duty to comply with the laws Congress enacts. Article I, by itself, doesn’t impose affirmative obligations on Congress to comply with the President’s agenda.

Even if the President’s inability to nominate officials amounted to an emergency, the President has two vested powers that would allow him to accomplish that goal, without transcending the recess appointment power: the power to convene, and adjourn Congress. Perhaps the President did need not to rely on unenumerated inherent powers, to solve the nomination problem. As Justice Scalia noted, the President could have “haled” Congress back into session, to force them to give them a special opportunity to confirm his nominees. The pedigree of the President convening Congress for nominations stretches back to our first Presidency, as George Washington relied on this power to allow the Senate to confirm “substantial number of civil and military nominations.” Presidents Buchanan, Lincoln, Andrew Johnson, Grant, and Theodore Roosevelt all convened the Senate “for the purpose of confirming nominees.” In 1989, then-Assistant Attorney General of the Office of Legal Counsel, and future Attorney General William Barr, advised President George H.W. Bush that he had the “power to convene the Senate during the planned August adjournment” to “consider[] both nominations and treaties.”

The President also retains a constitutional weapon against the Senate blocking his recess appointments, beyond a tenuous reading of the recess appointment clause. Under his vested Article II powers, he can adjourn the Senate, forcing them into recess: “in Case of Disagreement between them, with Respect to the Time of Adjournment, with Respect to the Time of Adjournment, [the President] may adjourn [Congress to such Time as he shall think proper.” The Constitution speaks to congressional gridlock—“in case of disagreement”—and gives the President a power to work around the Congress that cannot agree to adjourn. Part of the problem in Noel Canning was that the Republican-controlled House would not let the Senate recess for more than three days —hence the pro forma sessions every third day. This power has never been exercised, so it is unclear precisely how it would work. Hamilton in Federalist No. 69 would seem to read the text of the adjournment clause as giving the President the authority to resolve the specific time of adjournment, and not to adjourn Congress for other reasons: “The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment.” Based on this disagreement in Noel Canning, the President could resolve the “disagreement” between the House and Senate, and adjourn both bodies.

Once adjourned—according to the majority opinion at least—the Senate would be in recess, and the President would have been authorized to make the recess appointments for all vacancies. It would seem the adjournment clause can be used to address the “congressional intransigence” at issue in this case. But instead of relying on a clearly vested power, the President sought to quietly expand a power that does not reach these circumstances.

Convening Congress for nominations of all sorts—executive branch and judicial—would bring a special solicitude to the session, and force the issue into the forefront of American consciousness. There would likely be the risk of a political blowback, for sure. But the Constitution provides an alternate avenue of redress. Likewise, adjourning Congress would likely create a political backlash, as this unprecedented move would shut down the ability of both houses of Congress to transact business. Thus there is a political price to pay for exercising this power. Perhaps this is why, in our two-century history no President, even during times of grave crisis—not the NLRB going “dark”—have ever attempted this power, which traces from the odious practice of the King to dissolve Parliament. Then again, no President ever attempted to make an appointment during a three-day break in the Senate.

That these powers are vested to the President justifies the Court’s rejection of the Solicitor General’s inherent power gloss on the recess appointment clause. With the proper checks and balances attuned to our separation of powers, the convening and adjournment power would offer a constitutional method to maneuver around congressional intransigence.