January 23, 2014 5:13PM

Constitutional Legerdemain – Recess Appointments Branch

Constitutional restoration this far down the road will almost certainly come in small steps, one decision at a time, as in a case the Supreme Court heard last week, National Labor Relations Board v. Noel Canning. By most accounts, the justices were skeptical of the government’s claim that the president could make recess appointments when the Senate was arguably not in recess. That’s got friends of the modern executive state worried. Witness an op-ed in yesterday’s New York Times by AEI’s Norman Ornstein, than whom modern expansive government has few greater friends. Ordinarily a strong congressionalist, Ornstein here, in “Disarming the White House,” is alarmed that the case “represents the biggest threat to presidential power in decades.”

Given that President Obama, nearly every day, is making good on Nancy Pelosi’s counsel that we needed to pass Obamacare to find out what’s in it, we’ll be forgiven for thinking that the power of the president to make law as he goes along could use some threatening. But here it’s not some imagined presidential lawmaking power that’s at issue. It’s a real power, grounded in the Constitution, “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The problem as Ornstein sees it is that the D.C. Circuit Court below, and the justices last week, actually read that constitutional language for what it says. Rather than focus on the narrow question of “whether a president or the Senate gets to decide when the legislative body is in recess,” about which the Constitution is also clear, the judges below “ruled that virtually all recess appointments violated the direct language of the Constitution: Only those vacancies occurring during the recess between the two sessions of Congress, and only those filled during that recess, would be allowed.”

Shocking, for sure, that constitutional text should count this late in the day. But there it is. Unfortunately for his argument, what Ornstein has left out is the larger constitutional framework – and the principle underlying it. As Georgetown Law’s (and Cato’s own) Nick Rosenkranz made clear in a forum here just before the High Court heard the case, the president’s recess appointments power is subsidiary to his main power in the matter of appointments – the power to nominate, and by and with the Advice and Consent of the Senate, to appoint such officers as the Constitution and the Congress provide for. As was the case for a good part of our history, should the Senate not be in session when a vacancy occurred and therefore not be able to give its advice and consent to a nomination, the president has the power to make temporary appointments. But that is the exception, not the rule. And the underlying principle, rooted in the separation of powers, is that the Senate should have a role in determining who will fill important executive branch offices.

In the modern era, Ornstein laments, Senate recesses are very brief, which means that “the odds of a significant vacancy opening up during them are near zero.” Is that a problem? It means simply that the president will have to follow the normal course for filling vacancies. He’ll have to do so “by and with the Advice and Consent of the Senate.” Presidents from both parties have found a way around that requirement, of course, especially when the Senate opposes a nominee. They make “recess appointments” for vacancies that happen when the Senate is in session and therefore can consent, but they do so when the Senate is in recess, even briefly. To prevent that, the Senate more recently has held “pro-forma” sessions. But Obama went one further: Not only did the vacancies he filled happen when the Senate was in session, but he filled them when it was in a pro-forma session, and that brought the matter to a head.

Ornstein is unconcerned with such constitutional niceties. Instead, he offers a policy critique of what he fears the Court will do, namely, apply the Constitution as written. He contends that the Senate’s advice and consent power was meant originally only to vet nominees for qualifications, not to veto them over political differences. Yet he writes that “for most of American history, recess appointments were a safety valve for presidents when there were individual disputes over nominees, a modest weapon of the executive in the continuing struggle between the political branches” – constitutional limits on presidential power apparently notwithstanding.

Surely, the Framers were not unaware of the possibility of a struggle between the political branches. In fact, the Constitution is one big rule book for the conduct of that struggle. But in Ornstein’s view, recess appointments – not as they were written to be employed, but as they have come to be made – “are a limited tool, a modest safety valve to ameliorate the worst abuses of Senate power.” He sees the Senate’s refusal to confirm, based on other than narrow grounds, as an abuse of power – when the Constitution is silent on that point. He does not see the president’s exercise of a power he does not have as an abuse. There before you is the kind of argument that has brought us the modern executive state.