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Washington, D.C. (Photo: Orhan Cam/Shutterstock)

This Time, Scalia Was Right

• July 22, 2014 • 9:32 AM

Washington, D.C. (Photo: Orhan Cam/Shutterstock)

President Obama’s recess appointments were wrong and, worse, dangerous.

Justice Antonin Scalia and I don’t agree on much. My Supreme Court idols are Justices Ruth Bader Ginsburg and Sonia Sotomayor. I think women are people and corporations are not, that gun control is constitutional and discrimination is not. While I worry about the rights of minorities in America, Scalia crafts opinions stacking the deck for the majority. And, of course, I’m gay, a state of being Scalia likens to “bigamy, adultery, adult incest, bestiality, and obscenity.” We’re both Catholic, but I’m sure he wishes I weren’t.

Even when Scalia’s right, it’s hard to agree, so abrasive is his rhetoric and reaching his reasoning. Yet, he’s right about a few things. Scalia was right to dissent in Adoptive Couple v. Baby Girl last term, a case in which the majority steamrolled a statute protecting Native American families from being separated unjustly, and he was right this term about recess appointments. What Congress did to block Obama from appointing officials was bad, and what Obama did to get around Congress was worse, legally and politically. But what the Supreme Court did to avoid dinging Obama for his gutsy maneuver was outright nutty

THE CONSTITUTION SAYS THE president can only appoint most senior federal officials with the “advice and consent of the Senate.” The only exception comes from the Recess Appointments Clause. That Clause tells us the president can “fill all vacancies that may happen during the recess of the Senate”—but only by “granting commissions which shall expire at the end of their next session.” The purpose of the Clause was to let presidents appoint “acting” officials to fill unexpected vacancies that occurred during a recess so that an agency’s operations wouldn’t be interrupted.

Obama isn’t the only president to try to use recess appointments as a backdoor for nominations. But he is the first president to try to redefine “recess” and “session” on the Senate’s behalf.

When the Senate blocked Obama’s nominations in 2011, the appointment process came to a standstill—to the detriment of the agencies and the people they serve. Among other things, the National Labor Relations Board (NLRB) couldn’t even reach quora, essentially paralyzing the agency.

Intent on continuing to frustrate Obama’s attempts to appoint officials, the Senate held pro forma sessions every three days during the January recess. They had no intention of conducting business, senators said, but they’d been refusing to confirm Obama nominees while in regular session, and they’d be damned if they were going to let him sneak in recess appointments while they were recessed.

Instead of continuing to grapple with the Senate, Obama decided to ignore the Senate’s pro forma sessions. The administration reasoned that if senators weren’t conducting business, it could be argued that they weren’t actually in session. Obama’s tricky maneuver landed administration officials in court after a canning company affected by the recess-appointed NLRB officials filed suit.

IN THE MOST GENERAL sense, the Recess Appointments Clause was meant to keep the trains running on time—and that’s how Obama justified the move. But that’s the extent of the match between the text’s purpose and Obama’s use of the Clause. The Clause wasn’t meant to let the president sidestep Congress. Rather, it was a fallback for the executive branch to be used only when Congress truly wasn’t available to confirm nominees, when it took days to reach members of the Senate who returned home during the recess and days more for senators to return to Washington.

Additional restrictions since placed on this power narrow the pool of potential recess-appointees—for example, they must have been at the agency for several months before the recess appointment and hold a senior-level title. But these limits have hardly deterred presidents from abusing the Recess Appointments Clause to get around an obstinate Senate.

Obama isn’t the only president to try to use recess appointments as a backdoor for nominations. (He actually lags predecessors in making such appointments, according to Pew.) Neither was the 2012 Senate the first to try to block that effort by refusing to recess. It was Senate Democrats who inaugurated the dubious practice of holding pro forma sessions to block presidential recess appointments. At the time, in 2007, they were hell-bent on keeping President George W. Bush from making appointments over the Thanksgiving break.

But Obama is the first president to try to redefine “recess” and “session” on the Senate’s behalf. What makes the gambit particularly galling is that it was not just legally unsound but politically unnecessary. Obama should have been strong-arming Congress, not making an end-run around them. The former was legal, and politically feasible, but the latter risked a Supreme Court decision restricting the power of the presidency potentially permanently.

When Obama entered office in 2009, there were 57 Democrats in the Senate and just 41 Republicans, with two Independents. Even after the rocky mid-term elections, he had 51 Democratic senators and two liberal-leaning Independents to 47 Republicans.

If Obama and his allies in the Senate couldn’t manage to secure confirmations via traditional Hill bargaining (or House of Cards-style tactics), the party’s senators should have done in 2011 what they eventually did in 2013 with 52 votes: change the filibuster to let the Senate confirm nominees with a simple majority. Democrats had the votes. Unpopular as the filibuster rule change was in political and academic corners, its constitutionality is less suspect than that of Obama’s attempt to declare a recess over the Senate’s objections.

An intriguing alternative, all the more obvious in the wake of the Court’s ruling, would have been for a senator—or perhaps the vice president, presiding over the Senate—to note the lack of quorum. The Court rejected Obama’s argument that the Senate wasn’t really in session because it wasn’t conducting business in part by emphasizing that “despite its resolution that it would conduct no business, the Senate retained the power to conduct business.” But the Senate’s ability to conduct business during a low-attendance pro forma session would expire as soon as any senator questioned the lack of a quorum. As the majority notes, “Senate rules presume that a quorum is present unless a present Senator questions it.” Note that the wording of the opinion leaves this option open to administration officials.

The Justices ruled against Obama in the sense that they ruled the Senate only decides when the Senate is in session. But they went easy on him.

Noting a lack of quorum has the added benefit of giving Obama allies another means of pressuring senators: Because the senators owe a duty of attendance during even pro forma sessions, the Sergeant at Arms can also compel their attendance. “It would be cool as hell,” a friend noted wryly, for the Sergeant at Arms to “go round up Ted Cruz and Mitch McConnell and put them on airplanes.”

THE JUSTICES RULED AGAINST Obama in the sense that they ruled the Senate only decides when the Senate is in session. But they went easy on him. Scalia, joined by Chief Justice John Roberts as well as Justices Clarence Thomas and Samuel Alito, concurred in the judgment—that the recess appointments are invalid—but would have gone much further to prevent future abuses of the Recess Appointments Clause. The conservative quartet argued that “the majority sweeps away the key textual limitations on the recess-appointment power.”

To support their conclusion, the five more liberal Justices resorted to somewhat counterfactual reasoning. Their opinion claims, “We think it most consistent with our constitutional structure to presume that the Framers would have allowed intra-session recess appointments where there was a long history of such practice.” Scalia & Co. argue simply, compellingly, and correctly that the Framers never meant to allow the practice at all, negating any need to contemplate how they’d feel about the practice once established.

The administration took an unnecessary risk. It’s hard to overstate the stakes: If the Supreme Court had followed Scalia’s lead or taken the same path as the court below, totally condemning Obama’s maneuver, this president’s gamble on recess appointments would have tarnished his legacy, and permanently restricted the U.S. presidency. The Justices saved Obama, but at great cost to their integrity: They carved out this slap-on-the-wrist compromise only by inventing a new, moderately permissive rule for recess appointments with little basis in history and no textual support.

Rebecca Buckwalter-Poza
Rebecca Buckwalter-Poza attended Harvard College and Yale Law School. She has written on law and politics for the Nation, the Atlantic, Politico, the Daily Beast, and CNN, and co-authored James Carville’s 40 More Years. Follow her on Twitter @rpbp.

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