The Supreme Court heard argument yesterday about recess appointments. The Constitution says:
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.
Presidents have made such appointments since the Washington Administration. In the eighteenth century, adjournments were lengthy because travel to one’s state or district could take months. Now senators and representatives can make the trip quickly. Since at least Ronald Reagan, presidents have made appointments during intra-session adjournments of the Senate.
Democrats under Bush and Republicans under Obama started calling lengthy adjournments “pro forma sessions.” Nothing is supposed to happen; the Senate is vacant except for a couple of senators to gavel in these pro forma sessions. The purpose is straightforward – to prevent the president, initially Bush, now Obama, from making recess appointments so the government could keep functioning. Justices, on both sides of the political aisle, described that as “intransigence” and “irresponsibl[e].”
I’d like to take a wide-angle perspective. Article I addresses the passage of law. It takes two houses of Congress and the president’s signature unless both houses of Congress override a veto. Congress acts when both houses act in the required way together. That certainly includes the budget – but, since no budget is passed without the concurrence of both houses, it does set the scene for the kinds of stand-offs we’ve been witnessing.
A 1983 Supreme Court decision overturned an effort by Congress to create a one-house veto of some executive actions. The decision required two-thirds of both houses for Congress to overturn the president. The president’s action could not be overturned if it had the support of one third of the members of either house plus one. The one-house veto would have meant that the president needed the support of half the members of both houses just to carry out existing law.
The recess appointments controversy raises the same problem. Existing law sets up various federal offices. To function they need to be staffed. The Senate could confirm or reject nominees, or refuse to vote on nominees because of filibusters or otherwise. The result can not only amount to a battle over the identity of the nominees but also the very continuance of the federal program involved – in the case argued yesterday, whether the NLRB can function.
During most of the Constitutional Convention, the Senate would have run the government. There was a position for a chief executive but the draft gave him relatively limited powers. The delegates were unhappy with that system. The Senate was not representative of the American people, as it still isn’t. And as a multimember body it was cumbersome, not fit for the work of an effective, efficient executive. Two weeks before the end of the session, a committee consisting of one delegate from every state at the Convention, going well beyond its authority, reported its proposal for a president elected by an electoral college and to shift the senate’s executive powers to the president, except for the Senate’s advice and consent to appointments and treaties.
What is the proper balance in that final design between presidential effectiveness and a senatorial check? Should it just be a political battle between the branches. I think the big question is to distinguish minority rights from minority rule. I doubt this Court can pull that off.
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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