This column by ACRU General Counsel and Senior Fellow for the Carleson Center for Public Policy (CCPP) Peter Ferrara was published January 31, 2013 on Forbes.com.
Can the President make “recess appointments,” which do not require Senate confirmation, when the Senate is not in recess? No President in American history had ever tried to do that before. But President Obama tried to do exactly that in January, 2012, trying to bypass the constitutional requirement for Senate confirmation of principal U.S. officers.
Article 2, Section 2, Clause 2 of the United States Constitution, known as the Appointment’s Clause, states,
“[The President] shall nominate, and, 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.”
That Clause requires Senate confirmation for principal U.S. officers, other than inferior officers, who report to and may be removed by higher officers appointed by the President.
Each elected Congress between biannual elections operates typically under two separate “sessions,” one for each year. The first sessions ends when the Congress breaks for Christmas recess. The second session starts when the Congress reconvenes on January 3, as specifically required by the 20th Amendment.
In the early years under the Constitution, “the Recess” between these two sessions sometimes lasted 6 to 9 months, given the modes of transportation available at the time. That is why the Constitution provides for “recess appointments,” which the President can make to fill vacancies during this time, for which Senate confirmation is not required because the Senate is not available and open for business during this time.
Those recess appointments are provided for in Article 2, Section 2, Clause 3 of the Constitution, which states,
“The President shall have the 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.”
Note, however, that the tenure of such recess appointments is strictly limited, expiring at the end of the next Session, which is about a year.
The National Labor Relations Board (NLRB) is composed of 5 members, who are principal U.S. officers, and so must be confirmed by the Senate, after appointment by the President. A 2010 Supreme Court decision held that the NLRB must have a quorum of 3 members at any meeting to take official action.
In 2011, the Senate never took a Christmas recess, marking the end of the first session of the 112th Congress. Instead, the Democrat majority Senate led by Democrat Majority Leader Harry Reid entered into a unanimous consent agreement providing that the Senate would meet in pro forma sessions every 3 business days from December 20, 2011 through January 23, 2012.
Pursuant to that agreement, no business was to be conducted during those pro forma sessions. But during the December 23 pro forma session, the Senate overrode the prior unanimous consent agreement by unanimous consent to allow the Senate to pass a temporary extension of the temporary 2 percentage point payroll tax reduction. Similarly, in the January 3 pro forma session, the Senate met to open the second session of the 112th Congress, satisfying the requirement of the 20th Amendment that Congress shall assemble on January 3 of every year.
On January 4, President Obama purported to make 3 recess appointments to the NLRB to fill vacancies that had previously arisen. Those appointees were never submitted for Senate confirmation, on the grounds that they were recess appointees. But according to the Democrat majority controlled Senate, the Senate was not in recess on January 4. The second session of the 112th Congress had started on January 3, as the Constitution in fact requires.
President Obama argues that these pro forma sessions are a scam, or “chicanery,” as the New York Times called it, because no real business is supposed to be conducted during those sessions. But the President does not have the power to declare when the Senate is in session or not. Only the Senate has that power. Moreover, important Senate business was conducted on at least 2 occasions during those pro forma sessions. And, hey, New York Times, if there was “chicanery,” that would be Democrat Senate Majority Leader Harry Reid, and the Democrat Senate Majority, engaged in such chicanery.
On February 8, 2012, the NLRB met to affirm the ruling of an NLRB Administrative Law Judge that a company by the name of Noel Canning, a bottler and distributor of Pepsi Cola products, had violated the National Labor Relations Act. Canning appealed to the DC Circuit U.S. Court of Appeals arguing that the NLRB ruling was invalid because the NLRB did not have a three member quorum on February 8, as Obama’s three appointees had not been confirmed by the Senate as constitutionally required.
It was no surprise to anyone not personally devoted to advancing Obama propaganda that the D.C. Circuit Court unanimously ruled for Noel Canning. Smart lawyers in Washington have all been cruising for months for potential clients subject to NLRB enforcement actions, knowing that they will all be held invalid, as the NLRB with three vacancies on the Board cannot do anything under law. They cannot enforce violations of existing regulations, and cannot adopt new regulations with the force of law. That means that all regulations issued by the NLRB over the past year are null and void.
The DC Circuit Court held that the term “the Recess” in the recess appointments clause of the Constitution, quoted above, refers to the break between the two annual sessions of each Congress, not to any time the Congress takes a break. That is why the Constitution uses the term “the Recess,” and not “a recess.” And that is why the Constitution states that recess appointees only serve until the end of the “next Session.” The term “next Session” only makes sense if the appointment is made during the Recess between the two sessions. So the court held that recess appointments not requiring Senate confirmation can only be made during the Recess between the two sessions. Obama’s January 4 NLRB appointments were made after the second session of the 112th Congress started on January 3, and so required Senate confirmation to be valid.
The constitutional requirement for Senate confirmation of Presidential appointees is an important component of the Constitution’s checks and balances and separation of powers. The DC Circuit Court quoted the Supreme Court precedent of Freytag v. Commissioner of Internal Revenue, which states “The manipulation of official appointments had long been one of the American revolutionary generation’s greatest grievances against executive power, because the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism.”
But as the DC Circuit Court also noted, “the appointments structure would have been turned upside down if the President could make appointments any time the Senate so much as broke for lunch.” That is why the Constitution uses the word adjournment whenever it is referring to breaks during sessions. That is further confirmation that recess appointments can only be made during “the Recess” between sessions, and not during breaks during sessions.
The court explicitly rejected the Administration’s claim in the case that the President has the power to determine when the Senate is in recess. The court said,
“Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers…. An interpretation of “the Recess” that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law. The intersession interpretation of ‘the Recess’ is the only one faithful to the Constitution’s text, structure, and history.”
The court did note that claimed recess appointments had been made by Presidents 3 times before 1947 when the Senate took breaks during sessions, and the practice has been more lax since then. But no President has ever tried to make a recess appointment when the Senate itself is holding that it is in session available for business, and not in a recess, as Obama tried to do. Moreover, as the court noted, it has to follow the actual language of the Constitution, and not more recent lax practices.
The court went on to hold that the President’s claimed NLRB recess appointments were also invalid because the Constitution as quoted above only provides for recess appointments to fill vacancies that arise during “the Recess” between the two sessions of each Congress. That is why the Constitution says, “The President shall have the power to fill up all vacancies that may happen during the Recess of the Senate.” (emphasis added). The court explained, “A vacancy happens, or ‘come[s] to pass,’ only when it first arises, demonstrating that the Recess Appointments Clause requires that the relevant vacancy arise during the recess….[I]t would be plainly incorrect to say that an event happened during some period of time when in fact it happened before that time.”
The court added,
“If we accept the Board’s construction, we eviscerate the primary mode of appointments set forth in Article II, Section 2, Clause 2. It would have made little sense to make the primary method of appointment the cumbersome advice and consent procedure contemplated by that Clause if the secondary method would permit the President to fill up all vacancies regardless of when the vacancy arose. A President at odds with the Senate over nominations would never have to submit his nominees for confirmation. He could simply wait for a ‘recess’ (however defined) and then fill up all vacancies.”
The court’s opinion only formally indicates the developing crisis of executive branch “despotism,” to use the court’s word, as President Obama is increasingly threatening to veer into Hugo Chavez style rule by decree. That is further shown by the response of Obama’s NLRB to the court’s ruling. The NLRB said, “The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld….In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”
That deserves a laugh riot in response. The Board does not have important work to do nor any statutory duties as of now. The Board is out of business. And as to the President’s position ultimately being upheld, note this prediction. That position is more likely to be rejected 9 to 0 by the Supreme Court than 5 to 4, as even at least some of the Court liberals recognize the developing constitutional crisis. If the Obama Administration is foolish enough to even try to appeal to the Supreme Court.
If your company has a case or an enforcement matter before the NLRB, and your lawyer is not in court asking for a stay, instead of running up your bill fooling around with the now illegal NLRB, you need a new lawyer. With only 2 out of 5 members of the NLRB now Senate confirmed, it has no power to pursue any case or enforcement action, and all NLRB regulations issued over the past year are invalid with no force of law. That applies as well to any new regulations the NLRB tries to issue in the future, until it gets a third Board member confirmed by the Senate, or makes a valid recess appointment at the end of the year, if the Senate does go into the Recess.
The same points apply to the Consumer Financial Protection Bureau created by the Dodd-Frank legislation to further regulate the financial services industry. The Bureau’s purported Director Richard Cordray was also a claimed recess appointment by President Obama on January 4 of last year, along with the three NLRB appointees. That appointment was also invalid, and so the Bureau has no power to enforce any of its regulatory requirements, and all of the regulations it has issued are of no legal force or effect. Any defendant in a Bureau enforcement proceeding can now ask for a court ruling suspending that proceeding until the Bureau has a confirmed Director.
But even worse, the Bureau itself is unconstitutional under the Supreme Court’s Free Enterprise Fund decision issued in 2008. Like the federal agency struck down there, the Bureau is not subject to any ongoing Executive Branch authority, as it is an independent agency overseen by an independent agency. It is not subject to any Congressional authority, because it is statutorily empowered to set its own budget, and raise its own funds through the Federal Reserve Board. It is even exempted from at least some judicial review. If your company is subject to any Bureau enforcement action, or any Bureau regulation, there are lawyers in Washington who understand how to shut that down.
Further actions by the Obama Administration indicating the developing constitutional crisis go all the way back to Obama’s White House czars, which from the beginning were just an attempt to evade Congressional oversight and authority. The Administration also has issued waivers from the work requirements of the 1996 welfare reform law, despite clear language in the law prohibiting any such authority. Despite the Constitution’s requirement for the President to take care that the laws be faithfully executed, the President refuses to enforce laws he disagrees with.
That has applied to the Defense of Marriage Act, immigration laws, and to the No Child Left Behind Act regarding education policy. As Investors Business Daily reported on Monday, “And when Congress failed to pass the Dream Act, Obama decided to enact much of it on his own, with an executive order telling officers not to deport certain classes of illegal immigrants.” Obama has even issued arbitrary waivers to politically favored supporters from his own Obamacare law. The Administration has even threatened Executive Orders to override the Second Amendment.
The developing problem is not just President Obama, but his entire, so-called, Progressive base, which has fascist tendencies. As IBD also noted on Monday,
“The New Republic‘s Timothy Noah, to cite just one example, this week offered up ‘eight ways’ Obama can ‘jam through his agenda without Congress.’ Obama’s fellow Democrats recently urged him to ignore the law and unilaterally hike the debt limit. And now they are pushing Obama to run roughshod over Congress and enact his global warming agenda by fiat.”
This is not Venezuela. The American people are not going to sit idly by and tolerate Hugo Chavez style rule by decree, even with the New York Times and MSNBC increasingly urging us to do so. Like in a Greek tragedy, Obama’s fatal flaw of hubris ultimately threatens to bring down his entire Presidency.