Will High Court Trim Presidential Power?

Will presidential recess appointments survive at all, and if so under what terms?

The Supreme Court today heard arguments on the president's power to make recess appointments. Observers of the case, NLRB v. Canning, generally suggest that opponents of the president's authority in this area had a good day. The specifics of the case don't matter, here; what's at issue is whether recess appointments survive at all, and if so under what terms.

The case stretches back to a fight in the George W. Bush administration over whether the Senate can prevent recess appointments by not recessing at all; or, rather, by going on recess as it normally does but leaving a couple of senators behind to hold brief, non-substantive sessions every few days.

The ground shifted, however, with an unusually expansive decision by the D.C. Court of Appeals that, if upheld, would effectively obliterate a president's recess appointment power by interpreting longstanding constitutional prerogatives in an entirely new way. Presidency scholar Andrew Rudalevige runs though the issues involved, and suggests the Supreme Court should opt for a middle ground: Retain the president's traditional recess appointment power, but allow senators to prevent recess appointments by remaining in session -- even if "in session" means only holding pro forma meetings.

That's not a bad outcome. The Senate should have the ability to block presidential appointments; if a Senate under divided government really wants to refuse to staff the government, that desire is probably constitutionally protected, for better or worse. Those senators who refuse the president's requests would risk the possibility of a backlash.

In 2011 and 2012, the Senate wasn't really blocking President Barack Obama from making recess appointments; the House was. By refusing to recess, and thereby (following the rules in Article I of the Constitution) also preventing the Senate from recessing, the House, which has no Constitutional role in confirming appointments, was exercising more power than the Constitution affords it. Should that circumstance be repeated, one presidential (and perfection constitutional) remedy would be using the president's dormant Article II power that "in the Case of Disagreement between (the House and the Senate), with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper."

No one doubts that the Senate can block recess appointments, at least during a Congressional session, just by staying in town. Eliminating the recess power altogether, however (as the D.C. Circuit decision did), would turn a constitutionally prescribed presidential power into a dead letter, something that the Supreme Court should be extremely reluctant to endorse. Moreover, if the Supremes do affirm the lower court ruling, or that part of it, we can permanently retire the argument over whether the current conservative justices are "activists." Surely, reading a clause out of the Constitution in defiance of practice going back to the very first Congresses would qualify.

On the smaller issue of pro forma sessions, the issue isn't the Constitution; it's whether future presidents and Senates are willing to hash out compromises over nominations when they disagree. Whether the president has slightly more or less leverage in those negotiations might matter around the margins, but it's not nearly as important as whether everyone agrees to behave responsibly. And there's not much the Supreme Court can do to make that happen.

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    To contact the author on this story:
    Jonathan Bernstein at jbernstein62@bloomberg.net

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