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April 5, 2013

Legal Experts Argue Partisanship Encourages Recess Appointments

9th Annual Administrative Law and Regulatory Practice Institute

Experts discuss executive authority and constitutional jurisprudence at the 9th Annual Administrative Law and Regulatory Practice Institute.

Recess isn’t just playtime for elementary school children to dodge a ball or jump rope. The term also represents a sacred time for legislators to leave their chambers in Washington, return to their districts or states and visit with their constituents.

For the president back in Washington, the Congressional recess has historically been an opportunity to move certain presidential appointments forward without obstruction from members of the U.S. Senate. But in the D.C. Circuit Court’s recent decision in Canning v. NLRB, the court held that recent recess appointments administered by President Barack Obama are unconstitutional under the law.

In a recent session on hot topics in regulation at the 9th Annual Administrative Law and Regulatory Practice Institute, experts discussed what the Constitution says about this executive power and speculated as to whether political factors are at play rather than proper administration of the law.

“One does have the feeling in this whole situation that these aspects of administrative law and constitutional jurisprudence are really a proxy for political battles over the value of these programs,” said Renée Landers, professor of law at Suffolk University Law School.  She hints that some senators don’t think certain government agencies are necessary, so they fight the agencies’ existence this way.

Under scrutiny are four presidential appointments made in 2011: Richard Corday’s nomination to head the newly created Consumer Finance Protection Bureau and three nominations to the National Labor Relations Board (NLRB) that were completed on January 4, 2012, when the Senate was in a “pro forma” session. Under the Constitution, the House of Representatives can require the Senate not adjourn for more than three days, so the Senate is forced to be in session even if no business is conducted.

According to a White House transcript of an event in Ohio announcing Cordray’s confirmation, the president explained that the recess appointments were necessary after months of political posturing. “The only reason Republicans in the Senate have blocked Richard is because they don’t agree with the law that set up a consumer watchdog in the first place,” Obama said. “They want to weaken the law. They want to water it down. And by the way, a lot of folks in the financial industry have poured millions of dollars to try to water it down.”

The recess appointment clause found in Article 2 of the Constitution states that “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.”

“Because the recess appointments clause permits the president to bypass the Senate and make unilateral appointments, it has always been a rich source of friction between the political branches,” explained Charles J. Cooper, attorney and chairman at Cooper & Kirk PLLC. He argued that the recess appointments clause only allows the president to appoint during one particular recess period, as opposed to any recess period. “Elsewhere in the Constitution, the framers frequently used the term ‘adjournment’ to describe what appears to be short breaks during a session of Congress,” Cooper said.

Cooper also said that the D.C. Circuit in Canning v. NLRB found that the language of the clause referring to vacancies that “may happen” was meant to mean agency vacancies that “may arise” during recess rather than vacancies that “may happen to exist.” Cooper then indicated that Obama intentionally used recess appointments to cut the Senate from the process. “Far from being unavailable … the Senate had simply been unwilling to do so for over a year,” Cooper said.

For Peter Shane, chair in law of the Moritz College of Law at Ohio State University, interpretations that say the recess appointments clause only refers to a particular recess are too strict. “This is textualism at its most amateurish,” Shane said.

Shane believes that the framers intended to put the president “into the steering role” when it came to appointments and included the recess appointment to ensure that he can exercise that power whenever he needs to. Shane believes that the framers of the Constitution intended for the Senate to be an “excellent check” to avoid executive branch corruption — rather than blocking a confirmation for political reasons. “They weren’t worried about partisanship the way we do,” Shane said. “We have a political party system entirely at odds with their founding assumptions.”

The history of the executive branch’s use of the recess appointments clause as well as the court’s interpretation quickly reveals that the issue has remained controversial in the absence of a Supreme Court decision delineating what the framers meant. Panelists agree that while the Supreme Court has yet to consider a case regarding the recess appointments clause, they would not be surprised if the highest court does soon.

The 9th Annual Administrative Law and Regulatory Practice Institute on critical issues in regulation was sponsored by the ABA Administrative Law and Regulatory Practice Section.