The Volokh Conspiracy

One of the frequently explanations for why the Supreme Court prefers to let circuit splits develop is that the Justices benefit from having the views of many court of appeals judges before addressing a subject themselves.  Today’s Third Circuit opinion in NLRB v. New Vista Nursing & Rehabilitation serves that role admirably, adding two new perspectives to the existing circuit split on the breadth of the President’s recess appointment power.

The majority opinion took a different tack than the D.C. Circuit in Noel Canning v. NLRB.  To begin with, it limited the scope of its decision to concluding that the Recess Appointments Clause applies only to recesses between Senate sessions (“intersession recesses”) and not recesses during those sessions (“intrasession recesses”), and did not take the additional step the D.C. Circuit did of addressing whether the vacancies so filled must arise during the recess of the Senate or whether the recess appointment power extends to vacancies that existed before the recess.

The majority’s reasoning also differed in significant respects.  The majority found Founding era dictionaries inconclusive, saying that “[t]he word ‘recess’ lacks a natural meaning that clearly identifies whether it includes only intersession breaks or also includes intrasession breaks.”  Slip op. 40.  The majority concluded that state constitutions during the Founding era suggested the term “recess” was limited to intersession recesses (I’m not sure I was persuaded, but I can be dim), id. at 46-48, but that executive practice during the same period (which it noted “should be viewed with some skepticism” because of institutional self-interest in applying powers expansively) was consistent with the term also applying to “long intrasession breaks.”  Id. at 50-52.  The majority therefore concluded that “[s]tanding alone, ‘Recess of the Senate’ is thus ambiguous.”  Id. at 54.
Continue reading ‘Further Thoughts on the Third Circuit’s Recess Appointment Decision’ »

The Third Circuit (Smith, Van Antwerpen, Greenaway (dissenting)) has invalidated an NLRB decision after concluding that one of the Board’s members had an invalid recess appointment.  The decision is available here.  Before you think about printing it out, be advised that the majority opinion is 102 pages long, and Judge Greenaway’s dissent runs another 55.  I’ll have more when I’ve had a chance to review the decision.

Readers of my posts on recess appointments should understand that Judge Smith’s position on recess appointments is contrary to what I’ve espoused in the past–although I’m in the process of reviewing recent originalist scholarship about the meaning of “session” and “recess” and we’ll see whether that changes my mind.  But because I had an argument before a panel of the Third Circuit yesterday that included Judge Smith, I’ve studied up on him, and I’m aware that his recent track record before the Supreme Court is pretty good.  See United States v. Stevens, 533 F.3d 218 (3d Cir. 2008) (en banc) (ban on depictions of animal cruelty), aff’d, 130 S. Ct. 1577 (2010); Bruesewitz v. Wyeth, Inc., 561 F.3d 233 (3d Cir. 2009) (preemptive effect of National Childhood Vaccine Injury Act), aff’d, 131 S. Ct. 1068 (2011); Greene v. Palakovich, 606 F.3d 85 (3d Cir. 2010) (meaning of “clearly established federal law” for habeas corpus claims under 28 U.S.C. § 2254(d)(1), aff’d, 132 S. Ct. 38 (2011).

This morning, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit, in National Association of Manufacturers v. National Labor Relations Board, struck down a new NLRB regulation requiring employers to post a notice of employee rights under the National Labor Relations Act on their properties and websites.  Judge Randoph wrote the opinion for the court finding that the various means of enforcing the rule violated various provisions of the NLRA.  Among other things, Judge Randolph concluded that if Section 8(c) of the NLRA prohibits the Board from finding an employer guilty of an unfair labor practice for posting a notice informing workers of their right not to join a union, it cannot be an unfair labor practice for an employer to refuse to post a notice informing workers of their right to unionize.  Judge Henderson also wrote a concurring opinion, joined by Judge Brown, articulating additional reasons to find the rule invalid.

Of note, the court did not rely upon its previous decision invalidating President Obama’s recess appointments to the Board.  This was at issue because the publication date of the rule in the Federal Register occurred after the expiration of Wilma Leibman’s term, at which point the Board was left with only two Senate-confirmed members.  This did not matter, Judge Randolph explained, because the Board actually promulgated the rule before Leibman’s term expired and thus before the NLRB lost its quorum.  While the date of Federal Register publication matters for determining when petitioners must challenge agency rules — it is such publication that puts regulated parties on notice — once an agency has actually finalized and filed its rule with the Office of the Federal Register, the agency’s action is complete.  Thus the Board had a quorum when it acted to promulgate the rule, even if other parts of the federal government had additional responsibilities to fulfill.

Another challenge to this rule is pending in the U.S. Court of Appeals for the Fourth Circuit.

Almost a decade ago, the particular Recess Appointments Clause questions at issue in Noel Canning – whether “the Recess” can include intrasession Senate breaks, and whether the President can fill an office that became vacant before the Recess — were the subject of litigation challenging the recess appointment of William Pryor to the U.S. Court of Appeals for the Eleventh Circuit.  Marty Lederman and I were both involved in that litigation:  He was one of the counsel to Senator Kennedy in challenging the recess appointment of Judge Pryor, and I worked on the litigation in the SG’s Office.

In discussions between us about Noel Canning, we have compiled a helpful, albeit partial, list of sources  for those wishing to read up on these particular aspects of the Recess Appointments Clause.  They are set forth below in no particular order:

1.  AG Randolph Opinion (July 7, 1792) [registration required]

2.   AG Wirt Opinion, 1 Op. Att’y Gen. 631 (1823);

3.  AG Knox Opinion, 23 Op. Att’y Gen. 599 (1901);

4.  AG Daugherty Opinion, 33 Op. Att’y Gen. 20 (1921);

5.  CTA11 decision in Evans v. Stephens;

6.  Sen. Kennedy’s brief in Evans [Marty was one of Sen. Kennedy's counsel];

7.  Sen. Kennedy’s brief in Franklin;

8.  OSG Brief in Franklin [I was the line Assistant on the case];

9.  Ed Hartnett’s Recess Appointments of Article III Judges;

10.  Michael Rappaport’s The Original Meaning of the Recess Appointments Clause;

11.  Michael Herz’s Abandoning Recess Appointments?;

12.  OSG Petition in Noel Canning;

13.  Noel Canning’s brief in Noel Canning [forthcoming].

14.  Senator Mitchell’s 1993 statement on recess appointments and a draft amicus brief he wanted the Senate Legal Counsel to file.

15.  What the hey–a Congressional Research Service overview.

And here is a very comprehensive guide to AG opinions on the subject, which includes several links.

As Jonathan notes, the government filed its cert. petition seeking review of the D.C. Circuit’s Noel Canning decision invalidating President Obama’s recess appointments to the National Labor Relations Board.

Many cert. petitions contain a relatively abbreviated discussion of the merits–just enough to leave the Court with the firm impression that the court below got it wrong, but saving detailed argument for merits briefing if the case is granted.

This petition, however, does set forth a  detailed argument, defending the appointments on originalist grounds and seeking to refute the D.C. Circuit’s conclusion that recess appointments can only be made during intersession recesses and only to fill vacancies that arose during the recess. It looks to me like it incorporates a fair amount of research into founding-era recess appointments that had not been undertaken even as recently as Edward Hartnett’s important 2005 article on the subject.  For example, the brief cites a couple of recess appointments by President Washington (Pet. 25 n.10) that it argues conflict with the view that the vacancy must arise during the recess of the Senate, neither of which Hartnett  mustered during his fairly detailed discussion of the first President’s practices (see pp. 384-387).

I look forward to reading Noel Canning’s response–this stuff is catnip for law nerds.  I wonder if they will file an opposition or simply acquiesce in Supreme Court review, given the circuit split, the number of cases out there, and the importance of the issue.

UPDATE: Let me add that I don’t mean to endorse any particular assertion or example in the government’s brief; I only wanted to note the extent of the research set forth within it and that some of it appeared new.  I am confident that if there are any weaknesses in the historical examples the government cites, the Noel Canning brief will make that  abundantly clear!

SECOND UPDATE:  Reuters reports that Noel Canning will agree that Supreme Court review is warranted.

Gary Lofland, the Seattle attorney representing Noel Canning, said they would encourage the court to take the case.

“We believe that it’s important that the court resolve this issue because it provides a better certainty to the business community,” Lofland said in an interview.

No real surprise here: the NLRB is going to skip seeking en banc review of Canning v. NLRB and petition for cert.  There are scads of other cases now working their way through the courts of appeals and this is a way of resolving the issue once and for all.  The petition would be due April 25, 2013.

This is what the government did in the health care case–rather than seek rehearing in the 11th Circuit, it went straight to the Supreme Court.

A panel of the DC Circuit (Sentelle, Henderson, Griffith) today held that President Obama’s recent recess appointments were invalid.

This is a very important and very broad holding–indeed, much broader than when it appeared that this case would be resolved on the President’s ability to make recess appointments when the Senate was conducting “pro forma” sessions.  It is also the most thorough judicial discussion of the recess appointment power.

The main thrust of the court’s opinion is that the recess appointment power extends only to intersession recesses–recesses between sessions of Congress–and not to intrasession recesses.  Intrasession recess appointments have been made fairly commonly since  WWII, and have been particularly common since the Reagan Administration.  UN Ambassador John Bolton and Judge William H. Pryor, Jr. are two of the more high-profile intrasession recess appointments in recent years.  The D.C. Circuit’s holding is is in acknowledged conflict with an Eleventh Circuit opinion from 2004.  Intrasession appointments may be even more common than intersession appointments these days (because the appointment runs to “the End of [Congress's] next Session,” they last longer), so this is a very important ruling as a practical matter.

But the court also held (or at least stated) that the recess appointment power may only be used to fill vacancies that arise during the recess of the Senate.  The text of the Clause provides:

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.

Although the first Attorney General, Edmund Randolph, read “happen” to limit the power to filling vacancies that arise during the recess of the Senate, by 1823, Attorney General William Wirt had reversed course and said it extended to vacancies that “happened to exist” during the recess.  And there it has remained ever since.  The D.C. Circuit’s conclusion conflicts with the Eleventh Circuit, the en banc Ninth Circuit, and the Second Circuit on this score.

Both these points were not the main focus of the briefing, so I could see the government seeking rehearing en banc; but if the government feels it must act quickly because of the number of NLRB decisions that are at risk, it could head directly to the Supreme Court–possibly even seeking expedited briefing so the case could be considered this Term.

I do think the panel would have benefited from extensive briefing specifically on these questions.  For example, the court heavily emphasized that  ”[t]he dearth of intrasession appointments in the years and decades following the ratification.”  But as noted in the Government’s brief in opposition in Franklin v. United States  (which I drafted), arising out of the Pryor recess appointment, “Before 1857, Presidents had virtually no occasion to make such [intrasession] appointments.  During that period, Congress scheduled only three brief intra-session recesses, for periods of seven, five, and five days, over the winter holidays of 1800, 1817, and 1828, respectively.”

The D.C. Circuit opinion is an excellent recitation of the arguments against the validity of intrasession recess appointments.  For more argumentation along those lines, see this 2005 post by Marty Lederman, and briefs he filed (along with Tom Goldstein and Laurence Tribe) challenging the Pryor appointment, here and here.  Arguments for the validity of intrasession recess appointments, also in the context of the Pryor appointment (and drafted by yours truly) can be found here and here.

On Saturday morning I also attended an ACS panel on “Congressional Gridlock in the Executive: A Battle Over Nominations, Recess Appointments, and the Use of the Filibuster,” featuring law professors Michael Gerhardt and Michael McConnell, Louis Fisher of the Congressional Research Service, Marge Baker of the People for the American Way and moderated by Professor Neil Kinkopf.  As with yesterday’s post, my summary (and some comments) are below the jump. Continue reading ‘ACS Panel on Nominations, Recess Appointments and the Filibuster’ »

The Hill reports that Senate Majority Leader Harry Reid has promised Senate Minority Leader Mitch McConnell that there will be no more recess appointments made by the President during Congress’ next adjournment.

Last Friday, a federal judge turned away a challenge to President Obama’s recess appointment of three members to the National Labor Relations Board.  As Lyle Denniston reports on SCOTUSBlog, Judge Amy Berman Jackson refused to consider the claim in the context of a challenge to a recent NLRB rule requiring employers to provide certain information to employees.  ”Several plaintiffs have attempted to shoehorn a challenge to the President’s recent recess appointments into a pending APA case about the validity of a rule issued by the National Labor Relations Board,” Judge Jackson wrote in her opinion. “But the rule was promulgated by a quorum of undisputedly duly authorized members well before the recess appointments were announced, and it is set to go into effect automatically on April 30, 2012.”   As a consequence, she explained the court “declines this invitation to take up a political dispute that is not before it.”  The industry groups fared somewhat better in their challenge to the substance of the new NLRB rule.

Business groups have already begun to take aim at President Obama’s recess appointments. As SCOTUSBlog reports, a coalition of industry groups filed a motion (and supplementary memorandum) to include a challenge to the constitutionality of President Obama’s recess appointments to the National Labor Relations Board in ongoing litigation against recently adopted “notice posting” rule. According to the industry groups, the NLRB lacks the authority to implement and enforce the new rule because it lacks a quorum due to the unconstitutionality of the recent appointments.

For the past week there has been a fair amount of speculation that, because no opinion had yet been posted on its webpage, the Office of Legal Counsel either was not consulted about President Obama’s recess appointment on January 4 of Richard Cordray and three NLRB members, or that it had been consulted and said no recess appointment could lawfully be made while the Senate was conducting pro forma sessions.  

The problem was, as Jonathan Adler noted below, that the White House wouldn’t say publicly whether it had consulted the Justice Department. See here for more. There was understandable concern because of well publicized examples of this Administration obtaining legal opinions from other, less-traditional sources when OLC’s conclusions did not support the action it wished to take.  See here and here for columns by Prof. Bruce Ackerman, here for one by Prof. Michael McConnell, here for a post by Adam White, and here for a post by Ed Whelan.

Well, as I expected, there was indeed an opinion. The Office published it this morning, and it is available here.

Ordinarily, you’d say release of an opinion within a week of relevant executive action is pretty darned fast. After all, OLC opinions sometimes don’t make it on to its website for several months after they’re signed. But given congressional interest and public interest in this matter, this is an instance where simultaneous or near-simultaneous publication (which OLC sometimes manages, see here for an example) might have been helpful. Although Congress and the public does at least have a full explanation of the Administration’s rationale in time to be relevant to the ongoing debate.

More on the opinion later when I’ve had a chance to read it.

UPDATE on contents of the opinion: For starters, in an effort to give its analysis a bipartisan sheen (note the number of Republican Administration OLC opinions it cites), the opinion makes plain what may already have been apparent from my past detailed discussions of the subject, which is that I worked on the OLC’s research into the President’s ability to make recess appointments notwithstanding pro forma sessions back when the Office first considered the subject during the tail end of the Bush Administration. See Op. 4 (citing Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009)). The Bush Administration never made such an appointment, however, and the work was never was finalized (and thus, significantly, I wasn’t at liberty to reveal the nonpublic work I’d done).

The OLC opinion was signed January 6, two days after the recess appointments, but the opinion states (Op. 1) that OLC has already advised them about that question, the production of such a detailed opinion on January 6 suggests that the White House Counsel asked the question in advance of the appointments. The opinion formally advises on “whether the President has authority under the Recess Appointments Clause to make recess appointments during the period between January 3 and January 23 notwithstanding the convening of periodic pro forma sessions,” Op. 1 (emphasis added), thus carving out the period when Senator Reid actually did conduct business at the December 23, 2011 session (which was scheduled to be a pro forma session), as noted in my original post.

The opinion, concludes, essentially:

Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.

Op. 1 (quoting Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power–Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921)).

A more detailed recitation of the opinion’s contents after the jump.

Continue reading ‘OLC Opinion on Pro Forma Sessions and Recess Appointments Published’ »

Yale’s Bruce Ackerman, writing in the WSJ, calls for the White House to release the legal memorandum upon which President Obama based his decision to make several recess appointments while the Senate claimed not to be in recess.  As Ackerman notes, the Justice Department’s Office of Legal Counsel “traditionally served as the executive branch’s authoritative spokesman on matters of high legal importance,” but no longer.  On matters from the constitutionality of proposed legislation to the scope of the President’s authority as commander-in-chief, the White House increasingly looks elsewhere when it wants to ensure it gets a desired legal conclusion.  So, here, the President apparently relied upon the White House counsel — who is appointed unilaterally by the President — rather than OLC, which is headed by a Senate-confirmed Assistant Attorney General.  Comments Ackerman:

In challenging the Senate on recess appointments, President Obama has only relied on his White House Counsel, not the Justice Department, in reaching his constitutional conclusions. But so far, the current counsel, Kathryn Ruemmler, has failed to publish the written opinion she presumably prepared to advise the president on his responsibilities. . . .

This is no small difference in a dispute between the president and the Senate on recess appointments. If Mr. Obama had turned to [OLC head Virginia] Seitz as his principal authority, he would have been relying on somebody the Senate itself certified as a suitable official to resolve hotly contested matters of constitutional law. In turning to Ms. Ruemmler, he is asking one of his own appointees to judge whether the Senate can block the appointment of more unilateral appointees.

Within this context, it is hardly enough for him to inform the Senate that Ms. Ruemmler has given the go-ahead. At the very least, he should provide his counsel’s legal opinion explaining why he has the constitutional authority to second-guess the Senate on whether it is in recess.

So far, Ms. Ruemmler has only provided brief media interviews to explain the administration’s “practical, common-sense approach.” On her view, as she explained to NPR, a Senate’s “holiday session” is “just a gimmick” that prevents the president from governing.

Of note, Ackerman finds Ms. Ruemmler’s “casual remarks” wholly insufficient, even though he agrees with her ultimate conclusion that the President’s recess appointments were constitutional. For Ackerman, the issue here is “whether the president has an obligation to make his own constitutional case, or merely announce his judgment by fiat.”

UPDATE: Jack Goldsmith cautions that we should not assume that OLC was not consulted, though he urges.  As he notes, it is rare for a President to bypass or overrule OLC.  He is correct.  The problem is that the White House won’t say whether the Justice Department was consulted and the current administration bypassed OLC on the constitutionality of DC voting rights legislation and overruled OLC on the nature of the military intervention in Libya.  In the latter case, the White House also refused to say whether OLC had been consulted until that information was leaked and reported by the NYT‘s Charlie Savage.  So until the White House is willing to say whether OLC was in the loop, I think skepticism is warranted.  In any event, the Administration should be willing to offer a more complete justification of its position.  Writes Goldsmith:

I can understand why the administration might not want the OLC opinion itself released, especially if (as is probably the case) the opinion notes the closeness of the issue and acknowledges counterarguments, both of which could be used against DOJ in subsequent litigation. But beyond these concerns, which could be addressed by releasing a suitably summarized legal analysis, arguments based on attorney-client and executive privilege ring hollow in this context. The Obama administration’s supposed commitment to DOJ transparency has applied much more to Bush-era legal work than to Obama-era legal work. That looks bad and it is bad. I believe the President has a prerogative to use all of the constitutional tools at his disposal in fighting against a Congress that he believes is unduly intransigent. But especially in an area like this that is hard for courts to review and that raises no issue of classified information, Congress and the American people should be given an opportunity to judge the validity of the President’s legal arguments.

FURTHER UPDATE:  As John Elwood reports, there is an OLC opinion and it has just been posted on the DOJ website.

Today’s WSJ features an op-ed by former federal judge Michael McConnell on President Obama’s decision to grant recess appointments to Richard Cordray to head the Consumer Financial Protection Board and three members of the National Labor Relations Board.

It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess. Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office.

It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. If the filibuster is a problem, the Senate majority has power to eliminate or weaken it, by an amendment to Senate Rule 22. They just need to be aware that the same rules will apply to them if and when they return to minority status and wish to use the filibuster to obstruct Republican appointments and policies.

McConnell notes that Harvard’s Laurence Tribe, who is now defending the recess appointments, “dismissed as ‘absurd’ any suggestion that a period of ‘a fortnight, or a weekend, or overnight’ is a ‘recess’ for purposes of the Recess Appointments Clause.” He also observes that the Administration “has offered no considered legal defense for the recess appointments,” suggesting there was no Office of Legal Counsel memo supporting its claim. Writing in the LA Times, Bruce Ackerman likewise expressed doubts that the Justice Department’s OLC backed the decision:

Normally, presidents rely on the Justice Department to present their case on matters of high constitutional importance. But Obama has refused to take this course, probably because traditionalists in the department refused to endorse his collision course with the Senate. Instead, he used his White House counsel, Kathryn Ruemmler, to serve as his legal mouthpiece.

As Ackerman observed, the Administration adopted the same approach when declaring the military intervention in Libya was not a military conflict. The Administration also circumvented OLC when it decided to back the constitutionality of legislation granting voting rights to the District of Columbia.

Back on the subject of the constitutionality of recess appointments, at the Originalism blog, Michael Rappaport offers a post, “Recess Appointments: The Original Meaning and Its Decline.”

One justification for President Obama’s decision to make several recess appointments this week is that the appointments were necessary to prevent partisan obstruction from disabling federal agencies from performing their duties.  In the case of Richard Cordray, it was clear that Senate Republicans would block his appointment as head of the Consumer Financial Protection Board (CFPB) due to their opposition to how the Board is structured.  A recess appointment was the only way to put Cordray (or anyone else) in place to run the Board.

In the case of the National Relations Board, the President was concerned that the Board would lack a quorum.  As the Supreme Court confirmed in New Process Steel v. NLRB, there must be three NLRB members for the Board to have a quorum, and there were only two Board members remaining after Craig Becker’s recess appointment expired on January 3.  Yet if the NLRB was to lack a quorum it would not have been because Senate Republicans blocked the President’s most recent nominees.

Two of those given recess appointments — Sharon Block and Richard Griffin — were only nominated to the NLRB on December 15, just before the Senate went into its “pro forma” session during which no business was to be conducted. Yet even had the Senate been conducting business over the holidays, neither Block nor Griffin could have been confirmed.  As the Heritage blog reports, the Senate’s Health, Education, and Labor Committee had yet to receive the relevant paperwork and background materials on these two nominees — materials that are typically required, in addition to a background check, for Senate consideration.  (The third nominee to receive a recess appointment to the NLRB was Republican Terry Flynn who had been nominated last January.)

It is certainly possible — perhaps even likely — that Senate Republicans would have opposed confirmation of Block or Griffin, but we’ll never know.  The two were given recess appointments before they could be considered, let alone opposed.  In this regard, the Griffin and Block appointments were something of a preemptive strike.