Kausfiles solves constitutional crisis–There oughta be a law: Emailer “E” upbraids me for taking a narrow view of the debate over Presidential “recess” appointments: I tried to decide whether Obama’s constitutional position or the GOP’s position would prevail in court. Instead, he suggests, I should try to figure out what solution would make the government work better, whatever the Constitution’s’ language says.
“E” has a point–because from a good government standpoint, as many have noted, neither position is satisfactory. Obama claims he gets to decide when the Senate is in recess, which in effect would wipe out the Senate’s “advise and consent” function. A President could declare the Senate in recess everytime lawmakers went back to their districts, even for a weekend–in effect giving him or her power to staff the whole executive branch without any check from Congress. (Attorney General Harriet Miers, anyone.)
Under what is now the Republican position the Senate gets to decide when it’s in recess–but the Senate need never go in recess, wiping out the President’s “recess appointment” power, which has traditionally acted as a safety valve allowing a President to sometimes get his people in place, even in the face of a filibuster–but only for a short period of time.
Significantly, Obama’s own Office of Legal Counsel, which tries manfully to support his position, concedes that under its “functional” test,“[t]he Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations,”–something they might be able to do, even when junketing in Brussels thousands of miles away simply by providing that Presidential nominations could be received and forwarded to the appropriate committees, with members on 24/7 call to return if necessary (and of course in constant contact via Twitter!).** Even under Obama’s reading of the Constitution, in other words, a recalcitrant Senate could completely frustrate the President’s appointment power, never approving any of his appointees and leaving the government unstaffed–even using this power as leverage for unrelated negotiations. It just has to never recess.
Not a good situation. It looks like either the President will have too much appointment-making power or–even if Obama’s view prevails in this case ***–the Senate will wind up with too much appointment-blocking power. The latter will be especially true if the extraconstitutional filibuster continues to let a minority of Senators to exercise a veto in “advise and consent” cases.
If, like me, you think the Constitution is a stalemate machine that gives too little power to the President as it is, it’s especially troubling that the Senate’s position seems a likely con-law winner. We should want the President, as the highest of only two federal officials accountable to all the people, to at least have a safety valve of some sort that lets him make temporary appointments.
If we didn’t have the Constitution’s words to worry about, the ideal solutionwould seem obvious–a compromise that would give the President some power to go around the Senate but not unlimited power. For example, he could be guaranteed one or two days a year of “recess” to make a few crucial appointments. He wouldn’t be able to do it whenever he wanted. He might be limited in the number of these appointments. But the Senate couldn’t completely block him either.
You can’t find such a compromise scheme in the Constitution. It’s not all that brilliantly drafted! It makes a huge question of power hinge on whether the Senate goes into “recess,” but doesn’t say whether the Senate has to do it, ever.**** But that doesn’t end the story. Why can’t Congress pass a law, establishing by statute when “recess” periods shall occur, much the way it establishes by statute the order of succession for the Presidency? The Senate would, in advance, be binding itself to have at least one “recess” a year, creating the safety valve that in effect puts some limit on its advise-and-consent power. In exchange, the President would accept limits on the number of recess appointees–say25 or 50, or 75, for each year he holds office.
It would help, of course, if the Constitution could be read to explicitly give Congress the power to write such a law. Strangely, it can. The Advise and Consent clause itself seems to give Congress the necessary authority. It says the President
by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [E.A.]
At the very least the highlighted words would seem to give Congress the power to say, for any appointment beneath the rank of Ambassador or Supreme Court Justice, that the “President alone” can exercise his recess power to choose them on such and such a day once a year when the Senate is deemed to not be in session. That would take care of the vast majority of officials the President might want to appoint through a recess “safety valve.” For the remaining, higher-ranking appointments, Congress would just have to rely on its inherent ability to decide when it is in recess.
This solution is similar to the “elegant” deal proposed by Akhil Reed Amar and Timothy Noah, except that they would a) try to do it with a mere letter signed by 51 senators and b) focus that letter on the current impasse, having the Senate offer an ex post facto blessing of Obama’s controversial appointments. They would also c) limit it to situations where “the Senate actively denies [the President] constitutional power through procedural gimmicks,” whatever that is.
Majority Leader Reid will never get 51 signatures for Amar and Noah’s letter, which would require Senators to accede to Obama’s controversial reading of the Constitution, one that might dramatically reduce the Senate’s power for all time. Worse, Amar and Noah would try to do this in the partisan context of particular appointments to the NLRB and CFPB.
But Reid might get 51 votes, from both parties, for a statutory solution that accepted the Senate’s view of its recess-defining power and only required Senators to exercise that power. This would be a long-range solution appealing to both parties–Republicans would know it would protect them should they regain the White House and a Senate majority. And you wouldn’t need an angry and tedious election-year argument about who was obstructing whom with “gimmicks.” You’d just say that once a year on such and such a date the Senate will officially be in “recess” for Constitutional purposes–at least until the President makes 50 appointments.
The Framers could have thought of that, of course. But they didn’t. It’s mostly pure luck that this sensible solution can be wedged into the Constitution they wrote. But it’s luck we should take advantage of, no?
_____
**– That necessity would never arise, of course. In order to claim a “recess” under his “functional” test, Obama has to pretend that if only the Senate were in session it could take speedy “advise and consent” action–when the he’s really making recess appointments precisely because the Senate when in session refuses to take action. Obama’s not really frustrated that the Senate isn’t around to do business–he’s frustrated when they are. The law in its majesty makes liars of everyone. But that’s what you get when you are forced to use a housekeeping clause (designed to allow Presidents to act when the Senate can’t) to serve a balance-of-power purpose (letting the President act when the Senate says it doesn’t want him to). I blame the Framers.
***–It seems possible that the courts will take the Office of Legal Counsel’s position seriously and declare that the Senate can avoid recess by taking a few “functional” steps–like setting up an appointment-forwarding system–but they didn’t do them in the Cordray and NLRB cases. That would give a one-shot victory to Obama and remove any uncertainty about the legality of his appointments. But as soon as the Senate went through the motions of taking those “functional” steps, the Senate would once again be in control of whether it is in recess, and the “recess appointment” power would be vitiated. Call this the “answering machine” solution–the Senate can avoid recess as long as it sets up a device to receive the President’s messages.
****–There’s also a big and unnecessary confusion over what is a “recess” and what is an “adjournment.” You don’t want to know.
*****–It’s not clear you’d ever want a recess appointment of a Supreme Court Justice, though, given the politicization of the Constitution–even if it has been done.