If the Senate won’t act on a nomination, the president should find a new one

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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The United States Constitution grants the president authority to appoint judges and other federal officers subject to the advice and consent of the senate. In anticipation of the need to fill vacancies in these offices when the senate is not in session, the framers allowed for the president to make appointments during senate recesses. To minimize the incentive for abuse, judges and officers appointed in this way would serve only until the end of the next session.

In light of the distances and travel conditions faced by the framing generation, the need for recess appointments was clear. It could take weeks for the members of the senate to reconvene, not to mention that a smaller and less ambitious federal government required much less of congress’ time, allowing for longer recesses during which at least some vacancies might need filling.

Times have changed, as has the understanding of what constitutes a legitimate recess appointment. Not surprisingly, in this age of whatever-it-takes constitutionalism, there is no logical relation between the changed circumstances and modern presidential interpretation of the recess appointment power. While both recesses and travel times have become shorter, the recess appointment powers claimed by presidents of both parties have expanded. As the need for recess appointments has diminished, the executive’s power to make them has expanded.

Today the U.S. Supreme Court heard arguments in a case challenging this expansion of executive power. On appeal from the D.C. Circuit Court of Appeals, the case involves the legitimacy of appointments to the National Labor Relations Board made by President Obama during a mid-session break in senate proceedings. There is much the court might, and probably will, address relating to what constitutes a recess and whether pro forma sessions are really recesses. But to get the decision right the justices should focus on the bigger picture.

The issue most central to the framer’s debates in Philadelphia was the allocation of power among the branches of the national government and between the national and state governments. Believing that effective government requires a strong executive, while knowing from experience that executive power poses one of the greatest threats to liberty, the framers gave the president exclusive discretion on who would serve as judges and high executive officers while giving the senate the final say on whether those chosen by the president would serve. As a protection against the abuse of executive power, the default proposition was that individuals not approved by the senate would not serve.

So the question before the court is how to understand the recess appointments clause in light of this constitutional allocation of power between the president and the senate. A New York Times editorial in Sunday’s edition underscores, if inadvertently, how the court can get the answer wrong. “The government needs to be able to function,” wrote the Times, “even when Congress can’t – or won’t – do its job.”

There can be no argument that the recess appointments clause was intended to allow the government to function when the senate can’t do its job. But when the senate won’t do its job, meaning it is refusing to act on one or more presidential nominations, it is, in fact, doing its job. The senate’s job, with respect to judicial and executive officer nominations, is to approve them or not. In the case of the NLRB appointments, the senate did its job by declining to act on the nominations. Just as it would have been doing its job if it had approved the nominations.

The Times and the president’s lawyers will, no doubt, assert that the senate’s job is to vote up or down on nominations, but that is not the way the legislative process works. In every session of Congress thousands of bills are introduced and not acted upon. We generally understand this non-action as a rejection of the proposed legislation, and so it should be with executive nominations.

The system established by the framers of the constitution is actually very simple. The president nominates. The senate advises and consents. When the senate can’t advise and consent, the president may make temporary appointments. When the senate won’t advise and consent, the nomination dies. Explaining and enforcing that simple arrangement could be accomplished in one of the court’s shortest opinions ever. But don’t count on it.