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Three Democratic Senators explain why and how the President can rely on his executive power to enact immigration reform if Congress will not:

“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.
“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.”

Didn’t the Court just say in Noel Canning that executive action can’t be justified by congressional intransigence alone? When Congress won’t pass laws, then that’s its. There is no recess appointment power to make laws.

And, as Scalia added, the recess appointment power is not 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.”

In Noel Canning, Justice Breyer and Justice Scalia spar over what James Madison thought about recess appointments. Breyer notes that neither Washington, Adams, nor Jefferson made such appointments. But our fourth President did:

We know that President Jefferson thought that the broad interpretation was linguistically supportable, though his actual practice is not clear. But the evidence suggests that James Madison—as familiar as anyone with the workings of the Constitutional Convention—appointed Theodore Gaillard to replace a district judge who had left office before a recess began. Hartnett, 26 Cardozo L. Rev., at 400–401. It also appears that in 1815 Madison signed a bill that created two new offices prior to a recess which he then filled later during the recess. See Act of Mar. 3, ch. 95, 3 Stat. 235; S. J. 13th Cong., 3d Sess., 689–690 (1815); 3 S. Exec. J. 19 (1828) (for Monday, Jan. 8, 1816). He also made recess appointments to “territorial” United States attorney and marshal positions, both of which had been created when the Senate was in session more than two years before. Act of Feb. 27, 1813, ch. 35, 2 Stat. 806; 3 S. Exec. J. 19. JUSTICE SCALIA refers to “written evidence of Madison’s own beliefs,” post, at 36, but in fact we have no direct evidence of what President Madison believed. We only know that he declined to make one appointment to a pre-recess vacancy after his Secretary of War advised him that he lacked the power. On the other hand, he did apparently make at least five other appointments to pre­ recess vacancies, as JUSTICE SCALIA does not dispute.

In response, Justice Scalia spouts that even if Madison made such appointments, they weren’t well thought out.

The major­ity prefers to focus on five appointments by Madison, unremarked by anyone at the time, that “the evidence suggests” filled pre-recess vacancies. Ante, at 27. Even if the majority is correct about those appointments, there is no indication that any thought was given to their constitu­ tionality, either within or outside the Executive Branch. A handful of appointments that appear to contravene the written opinions of Attorneys General Randolph and Lee and the written evidence of Madison’s own beliefs about what the Constitution authorized, and that lack any con­temporaneous explanation, are not convincing evidence of the Constitution’s original meaning.

What would the iconic figurehead of the Federalist Society know?!

Same for Washington and Jefferson!

 The same can be said of the Solicitor General’s claim to have found two recess appointments by Washington and four by Jefferson that filled pre-existing vacancies. Noel Canning disputes that claim, point­ ing out that Washington told the Senate the offices in question had “ ‘fallen vacant during the recess’ ” and arguing that Jefferson may have removed the incumbent officers during the recess. Brief for Respondent Noel Canning 44. Suffice it to say that if either Washington or Jeffer­ son had adopted the broader reading, against the written advice of Attorneys General Randolph and Lee, one would expect a good deal more evidence of that fact.

One of Justice Scalia’s more memorable lines in Noel Canning is that the Executive has aggrandized his recess-appointment power through adverse possession.

Moreover, the majority’s insistence that the Senate gainsay an executive practice “as a body” in order to pre­ vent the Executive from acquiring power by adverse pos­ session, ante, at 14, will systematically favor the expansion of executive power at the expense of Congress.

It’s not often that property law (other than takings) intersects with constitutional law. So let’s consider the four (generally-accepted) elements of adverse possession (they vary depending on jurisdiction):

1. Open & Notorious – In this case, President Obama has openly and notoriously exercised his recess appointment power. He even held a press conference. This meets the first element.

2. Continuous – I think the continuous element helps Justice Breyer a lot. Though the practice was not done during the first 75 years, we do have a largely uninterrupted use of this power since World War II. So this element is satisfied.

3. Hostile – To characterize the relationship between Obama and Senate Republicans as “hostile” is probably an understatement. See Ted Cruz.

4. Under claim of right – The President has a plausible textual license to exercise this power, though 9 justices rejected it. This element is the weakest one.

So on the whole, President Obama probably would have acquired the power to recess appoints under the doctrine of adverse possession, if it applied to constitutional law. Which, thankfully it does not.

Though, I can imagine a defense to the adverse possession theory of law would be that something is “Unprecedented!” It can’t be continuous if it has never been done before!

Update: It seems Justice Scalia borrowed that zinger from a Jonathan Turley article, titled CONSTITUTIONAL ADVERSE POSSESSION: RECESS APPOINTMENTS AND THE ROLE OF HISTORICAL PRACTICE IN CONSTITUTIONAL INTERPRETATION.

The use of historical practice in the interpretation of the Clause ignores the purpose of the Clause specifically and the separation of powers generally in avoiding the concentration of power. It creates a type of constitutional adverse possession where the simple success of a president in usurping congressional territory is treated as proof of the validity of the underlying interpretation. Like the property doctrine, courts allow the acquisition of title to constitutional territory after “the claimant [demonstrates] exclusive possession that is open, notorious, continuous, and adverse” for a sufficiently long period.34 Of course, in this form of adverse possession, the original holder of the territory, Congress, has long contested the possession of the power in many of these cases.

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.

Justice Scalia, a former OLC Lawyer, casts doubt on OLC opinions that merely cite an earlier opinion, that itself had little analysis.

Legal advisers in the Executive Branch during this period typically endorsed the President’s authority to make intra-session recess appointments by citing Daugherty’s opinion with little or no additional analysis. See, e.g., 20 Opinions of Office of Legal Counsel (Op. OLC) 124, 161 (1996) (finding the question to have been “settled within the executive branch” by Daugherty’s “often-cited opinion”). The majority’s contention that “opinions of Presidential legal advisers . . . are nearly unanimous in determining that the Clause authorizes [intra-session recess] appointments,” ante, at 12, is thus true but mis­ leading: No Presidential legal adviser approved that prac­ tice before 1921, and subsequent approvals have rested more on precedent than on independent examination.