Recess Appointments, Constitutional Hardball And The Political Question Doctrine

The Editorial Board of the Connecticut Law Tribune recently wrote an interesting editorial (behind the Trib’s pay wall) on the D.C. Circuit’s decision concerning the scope of the president’s authority to make “recess appointments” pursuant to Article II, section 2 of the U.S. Constitution.  (“The President shall have power 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 Editorial Board offers a thoughtful perspective on the decision, including a suggestion that the Supreme Court should consider the matter and affirm the decision, even though doing so could lead to governmental paralysis.  I write to offer an alternative perspective based on a practice that Harvard Law School Professor Mark Tushnet describes as “constitutional hardball.”  I suggest the Supreme Court treat the issue as a “political question” that is not subject to judicial review.

I.  In Noel Canning v. N.L.R.B. (Jan. 25, 2013), the D.C. Circuit held that certain decisions of the National Labor Relations Board were null and void because the Board lacked a proper quorum when they were made.  Why did the board lack a quorum?  Because, the court of appeals held, certain of President Obama’s appointments to the board were constitutionally invalid recess appointments and, therefore, they did not count towards a quorum.  More specifically, the court of appeals held: 1) the term “recess” refers to intersession recesses of Congress, not temporary adjournments; and 2) the vacancy a president is filling must be one that actually arose during the intersession period, as opposed to one that merely existed during that period, although it may have arisen earlier.

This broad holding invalidates not only the NLRB appointments at issue, but dozens of prior recess appointments by both Democratic and Republican presidents to fill vacancies that arose before an intersession recess.  In other words, part of the decision upsets a longstanding understanding between the executive and legislative branches about the scope of the recess appointment power.

The Law Trib editorial takes issues with certain aspects of the opinion, particularly with the court of appeal’s decision to address a legal question considerably broader than what the case actually presented.  The editorial goes on to suggest, however, that the Supreme Court should intervene to resolve the matter conclusively:

[A] definitive ruling will be of incalculable value to both the White House and the Senate. They may be forced to develop a new and stabler modus vivendi, and one that does not involve the kind of tit-for-tat constitutional trench warfare over regular nominations that has produced phony Senate sessions and a contraction of the president’s ability to staff the executive branch and fill federal judicial vacancies. The current contortions ill serve public confidence in the ability of the federal government to conduct the nation’s business.

The editorial continues that if the Supreme Court affirms the D.C. Circuit’s decision,

the result will at least be clarity and what would seem to be a closer adherence to the constitutional text on an important structural matter. In principle — and setting aside the not-insignificant danger of governmental paralysis that may be a byproduct — this is desirable. On a variety of structural issues a good case can be made for the proposition that we have drifted too far from the constitutional shore.

Finally, the editorial concludes that if “we the people” (my words, not the editorial’s) are unhappy with the structure and process our forefather’s established in 1787, the remedy is simple: the people can exercise the authority under Article V to amend the Constitution.

I address these issues, i.e., the appropriateness of Supreme Court intervention and the Article V issue, below.

II.   Constitutional Hardball

The fight between Congress and the president that led to the N.L.R.B. case is an example of Professor Tushnet’s constitutional hardball:

As everyone knows, the recess appointments occurred because Republicans in the Senate played what I’ve called constitutional hardball. Constitutional hardball happens when one political party departs from previously taken-for-granted behaviors in the ordinary political process — for example, using the filibuster to disable an administrative agency from operating. (I should note that one feature of constitutional hardball is that both sides say, “You started it,” so that a Republican might observe that this particular episode of constitutional hardball began when the Democrats in the Senate abused their power over agenda-setting — a claim more plausible with respect to the Consumer Financial Protection Board than to the NLRB.) In Noel Canning the circuit responded to the administration’s moves in the game of constitutional hardball — which is ordinarily a political game — by invoking the adjudicated Constitution.

The problem with the Noel Canning decision, however, is that it creates an asymmetry:  The president’s conduct is subject to constitutional review but the Senate’s is not.  That is, the president is required to conform his exercise of the recess appointment power to the original understanding and text of that constitutional power, but the Senate’s exercise of its “advise and consent” power over presidential appointments is effectively unreviewable.  (What court is going to second guess a group of senators’ reasons for refusing to vote to confirm a particular nominee?)  Therefore, Noel Canning allows the Senate to continue to abuse that power–to refuse, for purely political, partisan and/or ideological reasons, to confirm qualified presidential appointees–but constitutionally hamstrings the president in his ability to respond to the Senate’s abuse of its advise and consent power.

Is there a way to avoid this asymmetry?  According to Professor Tushnet, the answer is “yes,” but only if the Supreme Court reconsiders its views on the political question doctrine:

“In the past” (perhaps I romanticize here), the solution would have been obvious: The courts should invoke the political question doctrine with respect to all the moves in constitutional hardball. Let the political branches work the problems out, perhaps ultimately by recourse to the people (“elections have consequences” and all that). But now the second point about constitutional theory arises. The political question doctrine has been what I’ve called “doctrinalized” in Baker v. Carr. It’s been given a rule-like form that makes it unavailable for the kind of flexible use that would be needed to deal with constitutional hardball, because the “takens-for-granted” that constitutional hardball challenges come in too many forms and can change subtly or dramatically in ways that doctrine can’t handle well.

I agree with Professor Tushnet.  The recess appointments dispute strikes me as a political fight between co-equal branches of the government.   As a general proposition, the Supreme Court should avoid getting involved in such fights.  But the political question doctrine, as currently reflected in case law, may not allow the Supreme Court to duck the question (although it can always refuse to grant cert.)  (Notably, the NLRB did not raise the political question doctrine in the Noel Canning case.  But the current Supreme Court has not been reluctant to raise issues sua sponte.)

III.  Amending The Constitution

If the Supreme Court hears the case and affirms the D.C. Circuit’s decision, the result, as the Law Trib editorial candidly recognizes, may be government paralysis if the Senate continues to abuse its advise and consent power.   As noted, the editorial’s response to this distinct possibility is to just amend the Constitution.

I’m sorry, and I apologize in advance for the offense I am about to commit against the Editorial Board (and the author of the particular editorial), but ooohhh pleeeeezzzzzeee. (I exaggerate for effect, of course.) Article V is not a realistic vehicle for remedying most structural problems with the Constitution.  It is just too difficult to get an amendment passed. University of Texas Law School Professor Sanford Levinson recently wrote:

But if one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world. The last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms. The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.

Think about it.  There are 27 amendments to the Constitution.  Take away the Bill of Rights, which really constitute one big amendment that was part of the original constitutional bargain made in 1787.  That leaves 17 amendments.  Subtract the 18th and 21st  amendments (which established, and then abolished, Prohibition).  That leaves 15 amendments.  Take away another three–the 13th, 14th and 15th–which took a Civil War to get passed.  That leaves 12 amendments.   I could go on.

Some folks, perhaps many, view the relatively small number of amendments as a sign of the Constitution’s tendency toward perfection.  I disagree.  Like Professor Levinson, I think the number of amendments is strong proof that the Constitution is far too difficult to amend.  I fully understand that reasonable minds can disagree on this point, but I stand by my position that amending the Constitution to address the recess appointment/constitutional hardball issue is not a realistic option.

In sum, my preference is for the Supreme Court to hear the case, update the political question doctrine and hold that it will not intervene in this particular interbranch dispute.  Letting the two branches of government duke it out in the political boxing ring is, to my mind, preferable to having the Supreme Court take sides in the dispute and tie the president’s hands (and I mean any  president’s hands, Democrat or Republican) behind his/her back in the face of an obstinate Senate that abuses its advise and consent power.

 [For other thoughtful commentary on this issue, click here, here and here.]