A federal appellate judge expressed skepticism about weighing in on a dispute between Congress and the White House over the constitutionality of the recess appointments President Barack Obama made earlier this year.
The judge, Thomas Griffith of the U.S. Court of Appeals for the D.C. Circuit, who formerly served as Senate legal counsel during mid-1990s, said at a hearing on December 5 that courts have “assiduously” refrained from stepping into political spats over recess appointments.
“Why drag us into it?” Griffith asked at the start of the hearing. The case is one of several pending disputes in federal appellate courts that will test the legality of Obama’s appointments in January to the National Labor Relations Board and the Consumer Financial Protection Bureau.
The hearing, attended by Senate Minority Leader Mitch McConnell (R-Ky.) and Stuart Delery, the acting leader of the DOJ Civil Division, followed last week’s argument in the U.S. Court of Appeals for the Seventh Circuit. That case also confronted Obama’s appointments to the labor board, which would have been powerless, lacking a quorum, without the additional members.
Noel Francisco, a partner in the Washington office of Jones Day, arguing in court today for a business challenging an NLRB ruling, said a “cloud” is hanging over the labor board and urged the D.C. Circuit panel to rule one way or the other on the merits of the board members Obama appointed to the agency.
Francisco said the question in the case is not beyond the power of a federal court to take up. He pointed to the pending dispute in the D.C. Circuit over whether an American citizen, born in Jerusalem, can have Israel designated as the birth country on a U.S. passport. The Justice Department unsuccessfully argued the “political question” doctrine blocked the judiciary from wading into the case.
Francisco and Miguel Estrada, co-chair of the appellate and constitutional law practice at Gibson, Dunn & Crutcher, both argued against the constitutionality of the recess appointments, saying the Senate was in session at the time the president made his picks and should therefore have had a chance to assess the candidates.
The argument is this: because the Senate was meeting every three days in pro forma sessions, the president didn’t have authority to bypass the advice-and-consent power of that body.
The Senate, Francisco said, was capable of conducting business even if nothing substantive happened during the 20-day break from late December 2011 into January. The test, he said, to determine the contours of a recess, cannot be how busy the Senate is. He joked at one point that tuning into C-SPAN on any day will likely show a Senate that isn’t entirely busy.
Griffith also seemed concerned that the entirety of the Senate’s position about its definition of recess periods was not before the appeals court. Estrada represented dozens of Republican senators in a friend-of-the-court brief in the D.C. Circuit. Still, there was no unified position from the Senate, Griffith said. The lack of such a statement suggested there were insufficient votes for a resolution on the matter, the judge said.
Crafting a hypothetical situation, Griffith asked Estrada whether any president would lack the power to make a recess appointment during pro-forma sessions in the Senate between Labor Day and January. Estrada said yes. Any recess appointment during that time, he said, would be unlawful. The Senate, Estrada said, returning to reality, gaveled into session as the Senate and “not as two guys in a bar.”
The Justice Department’s Beth Brinkmann, who leads the Civil Division’s appellate team, argued the Senate wasn’t really in session when the president acted, properly, in filling vacancies on two agencies. She urged the court to look at the ordinary meaning of the word “recess.”
Chief Judge David Sentelle noted that the language of the recess appointments clause in the Constitution says “the recess,” suggesting that any common understanding of the word would not lead to an easy win for the government.
The Senate wasn’t conducting any business, Brinkmann said in court. There were no hearings, no communication with the president. “No one’s there,” she said. “It’s empty.”
A ruling in favor of the challengers, she said, would create an “appointment vacuum” in which, over Senate recesses, no president would have the power to fill a vacancy.
She urged the court not to meddle with a shared understanding between the branches over the scope of Senate recesses. “There is a long, long history that would be disrupted,” Brinkmann told the panel judges.
Griffith, who asked the most questions at today’s hearing, said to Brinkmann that the purpose of recess appointments has changed over time. Now, the judge said, presidents who are frustrated with the Senate, for its treatment of nominees, makes the appointments outright. Griffith suggested the recess appointment authority should not be a “two bites at the apple” power.
Sentelle expressed some concern that Francisco largely ignored the underlying dispute over collective bargaining between the bottler Noel Canning of Yakima, Washington, and the labor board. (Francisco was arguing on behalf of the company and the U.S. Chamber of Commerce.) The company, Francisco said, does indeed care about whether certain NLRB members are even allowed to be on the board.
Sentelle said he didn’t want the collective bargaining part of the case — Noel Canning is challenging a labor board ruling — to get “completely lost” in the dispute over the recess appointments.
The court didn’t immediately rule after the hearing.
Mike Scarcella is a reporter for The National Law Journal, a Legal affiliate based in New York.