The prospect of multiple Supreme Court appointments looms large over the incoming Trump administration, and liberal stalwarts are urging President Barack Obama to appoint Judge Merrick Garland to the high court by an aggressive, and dubious, parliamentary maneuver.
The Constitution’s recess appointment power allows the president to make appointments to federal offices without congressional consent while Congress is in recess. The appointment is only temporary, and expires at the conclusion of the ensuing Senate session — in this case, December 2017.
To mitigate against recess appointments during adjournments, Congress typically holds “pro forma” sessions on a regular basis — the chamber is, quite literally, gaveled into and out of session in a matter of seconds, making recess appointments impossible. However, some liberal commentators argue the president has authority to make a recess appointment in a matter of seconds on Tuesday.
The 114th Congress will hold its final session on Tuesday, during which the speaker of the house will officially conclude the term’s business. At the strike of the speaker’s gavel, Congress will technically be in, if only for a moment, before the 115th Congress is called to session one minute later. It’s that brief moment, called an “inter-session recess,” that some believe presents Obama the opportunity to exercise his recess appointment power. (RELATED: Trump Could Reshape The Federal Court Dramatically)
This brazen exercise of the recess appointment prerogative was deployed once before by former President Theodore Roosevelt in 1903. “There was but one fall of the gavel,” a newspaper reported, according to the Washington Post, “but one stroke, but one sound,” and Roosevelt made 193 recess appointments. His loose reading of the recess appointment power was widely repudiated, and never replicated by his successors.
As professor Jonathan Adler of Case Western University School of Law explains at the Washington Post’s Volokh Conspiracy, this theory of the recess appointment power has already been foreclosed by the Supreme Court.
In NLRB v. Noel Canning, the justices were asked to resolve a recess appointment controversy relevant to this dispute. In the case, Noel Canning, a bottler and distributor for Pepsi-Cola, argued a National Labor Relations Board ruling concerning a labor dispute between its company and a union was invalid because the judgement was promulgated, in part, by individuals who were not technically members of the NLRB. The individuals in question were ostensibly recess appointees to the board, though the company argued that Congress was not technically in recess when the appointments were made. A unanimous Supreme Court agreed.
In his opinion for the court, Justice Stephen Breyer wrote:
we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short [i.e., less than 3 days] that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. And a recess lasting less than 10 days is presumptively too short as well.
In other words, the justices have already concluded that an inter-session recess is not a recess within the meaning of the Recess Appointment Clause, because it is far too short.
Garland plans to begin hearing cases again at the U.S. Court of Appeals for the District of Columbia Circuit on Jan. 18.
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