I’m sympathetic to Ed Kilgore’s dream of a President going nuclear on Congress in the face of losing all power. Were the positions reversed, I’d probably want to construct some bold move as well. But Kilgore’s dream scenario outlined yesterday is unconstitutional.
His argument is that Barack Obama should give Merrick Garland a recess appointment during those hours between the adjournment of the 114th session of Congress and the 115th session of Congress that will happen on January 3rd.
But wait: Didn’t the Supreme Court eliminate recess appointments in a recent decision? Not exactly. In a 2014 decision, SCOTUS unanimously ruled that recess appointments by the president (which only remain in force until the end of the ensuing congressional session) could be thwarted by Senate “pro forma” sessions that technically keep Congress in session perpetually. But the Senate does have to eventually end the session before beginning a new one on January 3, 2017. And a precedent was set by none other than Republican Theodore Roosevelt that a president could make “intercession” recess appointments in the seconds between one swing of the gavel and the other. TR made 193 recess appointments at the beginning of 1903, and while the legality of the action has been questioned, it has never been clearly overturned. If Obama were to follow this procedure, it would take extensive litigation to reverse it, and it might stand after all.
This is actually wrong in a careful reading of NLRB v. Noel Canning, 573 U.S. ____ (2014). In that case, the Court had to decide whether an appointment to the National Labor Relations Board was lawful under the recess appointments provision of the Constitution.
The Senate was holding pro forma sessions to prevent a ten day recess. All sides agreed that a ten day recess would be enough to trigger a recess appointment. In a 9 to 0 decision, with all of Barack Obama’s appointees to the Supreme Court voting against him, the Court ruled that the Senate’s pro-forma sessions were constitutional.
But, and this is where Kilgore runs afoul, one of the big issues was whether the recess appointment provision applies in intra-session recesses or just inter-session recesses. The former is during a recess that occurs during a session of Congress. The latter is what Kilgore is looking at, i.e. a recess that occurs because one Congress has adjourned and a new one has begun.
Breyer, for the unanimous Court, held that the law is the same whether dealing with inter-session or intra-session recesses (Scalia argued that it should only apply to inter-session recesses, but he concurred with the result), and then notes this
we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, §5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well
573 U.S. ____, slip. op. at 21.
Now, you will note the word “presumptively.” What does that mean exactly? The Court tells us.
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.)
What about the Theodore Roosevelt precedent, you ask? Kilgore raises that point. The Court actually addressed it in the opinion at page 20 of the slip opinion. They also addressed similar appointments by Presidents Taft, Truman, and Johnson. But the Court noted this was the first time the matter of the recess appointments clause had been before the Court and it was the Court’s opinion that “in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause.” 573 U.S. ____, slip. op. at 21. All sides in the case, it should be noted, agree that a recess of three days or less is too short for a recess appointment.
The Senate will convene in a pro-forma session on December 30, 2016, which the Court in Noel Canning held was a legitimate act to curtail recesses. The Senate will next convene on January 3, 2017. As the Court and Barack Obama’s Solicitor General agreed, Sunday is not considered a day for purposes of calculating an adjournment and they would apply it to recesses as well.
Consequently, there will only be a three day gap when the Senate is not in session and under the plain reading of NLRB v. Noel Canning, the President cannot appoint Merrick Garland to the Supreme Court. As the Court held, “Political opposition in the Senate would not qualify as an unusual circumstance,” to enable the President to make a recess appointment during that time.