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Obama's NLRB Recess Appointments are Constitutional

JURIST Guest Columnist James Kennedy, former administrative law judge for the National Labor Relations Board, argues that President Obama's recess appointments to the National Labor Relations Board were an appropriate exercise of his constitutional powers based upon historical and judicial precedent...

On January 4, President Obama made four recess appointments when both the Senate and the House of Representatives declared themselves to be in session, even though they were actually in recess. His political opponents raised a stink, accusing him of being high-handed, defying the will of Congress and committing an unconstitutional act. However, the reality is Congress has only itself to blame. Historical background will demonstrate this point.

A large number of presidential appointments require the Senate's consent. According to an award-winning 2009 scholarly work by University of California, Berkeley, School of Law professor Anne Joseph O'Connell, there are over 1,100 federal jobs which require the advice and consent of the Senate. From where has the Herculean task of filling all of these appointments come? We must start with the Appointments Clause in the US Constitution itself, Article II, Section 2. It reads in full:

...[the president] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.
Thus, the Senate's primary oversight power focuses on the highest listed positions found there. These are the offices one would expect: cabinet members ("public ministers"), ambassadors and Supreme Court justices. For posts of lesser rank, the last portion covers "all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law..." Under this clause, Congress has insisted on having the oversight of those 1,100 jobs, a number that does not even include the 850-member federal judiciary. Of course, due to lifetime tenure, the judiciary does not require Senate oversight to anywhere near the extent that the executive appointments command. Even so, between the judiciary and the executive, there are far too many personnel decisions for the Senate to efficiently handle. Thus, the source of the slowness of the appointment process is Congress itself. Whether Congress can untie that Gordian knot is beyond the scope of this article; However, it helps to put the January recess appointments in perspective.

Congress has passed scores of statutes to guarantee that the Senate could insist on advice and consent authority. To no one's surprise, the five members of National Labor Relations Board (NLRB) and the director of the newly-created Consumer Financial Protection Bureau (CFPB) are among those subject to Senate confirmation under such a statute — 29 USC § 153(a) for the NLRB; 12 USC § 5491(b)(2) for the CFPB.

Whether under the Appointments Clause or the statutes, a convention eventually developed between the president and Congress, whereby each has agreed that in order for the Chief Executive to effectively govern, he will submit to the Senate for its approval or disapproval his choices to fill those vacancies. For its part, the convention requires the Senate to act promptly on the president's appointments. Each body knows that in order for the executive branch to perform its duties the offices must be filled, since absent a live person in those posts, the government agency cannot do its job.

Indeed, the Framers were well aware that vacancies for ordinary reasons (death, resignation, incapacity and the like) would inevitably occur during times when the Congress would not be in session. They also knew that during those times government still needed to continue in operation. To deal with that predicament, they inserted as the third part of Article II, Section 2, the recess appointments clause: "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."

It would be extremely rare for a president to fail to keep his part of that convention and refuse to fill a vacancy. In the past, there have been instances where the appointee has sabotaged his department or agency, but the convention itself nevertheless presumes good faith by both the president and the Senate.

Yet, over the past five years or so, it has become common for the Senate to breach its part of the bargain. President George W. Bush sent a large number of judicial appointments to fill district and court of appeals vacancies. President Obama has nominated both judges and executive branch appointees. For each president, the Senate became bogged down by an active minority and rendered itself unable to act on the choices, often for reasons that are not explainable under good government principles, and which normally denied the nominee any vote whatsoever. As a result, perfectly qualified nominees have been left aside, usually to the detriment of the nation, though some recess appointments did occur. The most common tactic to accomplish this blockade was the filibuster or the threat of the filibuster. Recently, former Senate minority leader Harry Reid and current minority leader Mitch McConnell have both used a more dubious tactic: the pro forma congressional session aimed at thwarting the president from using his authority under the Recess Appointments Clause to fill those vacancies.

Between 1787 and 1789 the Framers never thought that the Senate would, out of spite or extreme partisanship, reject its obligation to at least allow the president to appoint his entire team to run the executive branch. As of June 2011, the Republican minority in the Senate had blocked 223 of President Obama's 1,132 executive and judicial appointees — over 20 percent. During the latter half of 2011, the situation only got worse. In May, President Obama trial-ballooned Elizabeth Warren as director of the yet-to-be-born CFPB. Though Warren was exceptionally well qualified, she encountered fierce Republican opposition. To counter it, Senator Al Franken publicly urged the president to appoint her during a recess. Instead, on July 18, Obama nominated Richard Cordray, a former Ohio attorney general. Neither wanting Cordray nor anyone else as CFBP director, the Republican Senate minority and the Republican dominated House, following the Reid model of 2007, decided to conduct pro forma sessions throughout the August recess, which they believed would stop the president from making recess appointments. In the meantime, at the NLRB, Chairman Wilma Liebman's term was expiring on August 27 while Craig Becker's recess appointment was set to expire on January 3, 2012. In 2010 the Supreme Court's decision in New Process Steel v. NLRB held that the board needed at least three members to constitute a quorum. Becker's departure would leave only two and would effectively shut down the five-member board.

Obama was faced with a very real governing problem. He needed to both activate the fully funded CFPB, by then well past its official start date of July 21, and to make sure the NLRB did not grind to a halt. Like the CFPB, Congress had fully funded the NLRB as it had since 1935. However, Republican senators did not like the single director format of the CFPB and were responding to right-wing criticism of the NLRB which had reached a fever pitch. At year's end, Obama had three pending nominations to the board and one, Cordray's, to the CFPB, but the Senate was not processing any of them.

In December, Congress, as it had in August, refused to recess. Instead, beginning on December 17, it began conducting pro forma sessions every third day, lasting only a minute or two, led by a single congressman, and conducting no official business. The Senate was deliberately refusing to carry out its part of the aforementioned convention. As in August, its announced purpose was to prevent the president from making any recess appointments, specifically targeting the CFPB and the NLRB.

Is such a tactic constitutionally defensible? There have been Department of Justice memos over the years trying to determine what constitutes a recess. These generally focus on the question of how long a recess must be before a president can invoke the recess appointments clause. They have also looked at the nature of the recess — intersession or intrasession? Legal scholars have written insightfully on these issues over the past few years as well. Recesses longer than three days have often been said to be the threshold, but this is not always the case. In the early twentieth century, President Teddy Roosevelt once made 160 recess appointments during an intersession recess of a few hours. Congress was not happy about it and tried to restrain the practice, but no conclusions about its legality were ever drawn. In 1949, President Truman used a two-day intersession recess to appoint a member to the Civil Aeronautics Board.

In addition, there have been court cases which danced around the president's appointment powers. In the 1973 case of Williams v. Phillips, the US Court of Appeals for the District of Columbia Circuit suggested that the president, in the absence of a statute, had broad powers of appointment so that he might faithfully execute the laws.

Questions still remain. What if there is such a statute, as there are in regards to the NLRB and CFPB appointments? What if the Senate willfully chooses to ignore the president's submissions per those statutes? Does the president not still possess, as the court suggested, the faithfully-execute-the-laws mandate of both his oath and the Constitution and that same broad power of appointment? If so, should he not exercise it?

It is self-evident that the president must govern. That is the job the people elected him to do; that is what is expected of him and that is part of his oath. Appointments are central to his obligation to faithfully execute the laws. Does the Congress hold a correct view of the recess appointment clause when it tries to prevent its invocation by pretending to remain in session through its pro forma kabuki dance? I do not think so. The recess appointment clause was designed as a shield to keep government operating during times of unforeseen disability. It was certainly never conceived as a sword to prevent the president from performing his duties, yet that was the exact manner in which the Congress was using the recess appointments.

How then, can the president do his job when Congress, the very body which created the agencies in question, funded them and provided them with statutes to enforce, nevertheless denies him the means to do it? Must he appoint without Senate confirmation? The answer seems to be yes.

One can first find suasion in the language of the Recess Clause itself. "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." The phrase "shall have the power to fill up all vacancies" suggests that he has a mandate, not just a power, to make the appointments. In 1823, Attorney General William Wirt said of that power: "The substantial purpose of the constitution was to keep these offices filled; and the powers adequate to this purpose were intended to be conveyed." Clearly, he has to resort to some sort of muscle if he wants to fill these artificially extended vacancies. To my eye, Wirt understood that the president not only had the power, but that he was expected to use it to "fill up the vacancies; [and] keep them filled."

Similarly, Patrick Hein, in his 2008 law review article In Defense Of Broad Recess Appointment Power, like Wirt, argues forcefully that the president's recess appointment power must be a broad power; he even asserts that despite complaints from individual legislators, the Congress has accepted the existence of that broad power and has made no real effort to curtail it, instead, preferring political resolutions in individual cases rather than some sort of overall revision. If the power is as broad as Hein postulates, then it is strong enough to overcome sham congressional recesses. Exercise of that power, though, is tempered by the fact that a recess appointment is always a temporary matter.

All of the writers observe that if the Senate does not want a specific individual in the office, it can put his appointment to a vote or allow the recess appointment and simply await the expiration of the Senate session. In the meantime, the president is allowed to govern through that officeholder.

The December 17, 2011 announcement that Congress would conduct pro forma sessions through January 23, 2012, also meant that the third-day pro forma openings would continue beyond the intersession recess of January 4 between the first and second session of the 112th Congress. That meant that President Obama had two bases on which to make his recess appointments of Cordray and the three NLRB members. The easiest was to follow the precedent set by Teddy Roosevelt. The second was to observe that the Congress was in bad faith, operating in breach of the convention when it artificially extended itself to prohibit the president from doing his job. The president's decision followed both paths. Roosevelt was not wrong and the Senate was engaging in its own misconduct by refusing to follow its constitutional mandate. After all, the Senate was not performing any business; its members had gone home and even if it institutionally wanted to perform its consultative role, there was no one there with whom the president could consult. It was nothing more than a traditional intersession recess, for Congress was not scheduled to resume business until January 23, even if a minority of its members was attempting to keep Congress's slumbering hand on what they thought were the brakes.

When, on January 4, President Obama gave recess appointments to Cordray and the three Labor Board appointees, he was well within his powers under the Recess Appointments clause. Congress had forced his hand and he used the muscle he had available. He knew Congress was abusing the appointments process and he determined to exercise the broad power he possesses. Seeking to execute the laws as the Constitution requires, he announced: "I refuse to take 'no' for an answer," adding, "I am not going to stand by while a minority in the Senate puts party ideology ahead of the people we were elected to serve." The appointments were, therefore, perfectly lawful and proper. No president can be prevented from doing his job by ersatz procedural barriers.

Clearly a legitimate recess existed on January 4. As the pro forma session was entirely artificial, the president had both the duty and the power to make the appointments he did. Had he not done so, he would not have been executing the laws of the land and would not have met his obligations as president. He did nothing that can be characterized as unconstitutional. Claims to the contrary can only be considered political half-truths.

James Kennedy is a retired administrative law judge, having served in that capacity at the National Labor Relations Board San Francisco office of the Division of Judges for nearly 35 years. He earned his JD degree from the University of Arizona College of Law (now the James E. Rogers College of Law) in Tucson. As an attorney he has been admitted to the state bars of Arizona, Washington and California.

Suggested citation: James Kennedy, Obama's NLRB Recess Appointments are Constitutional, JURIST - Sidebar, Feb. 11, 2012, http://jurist.org/sidebar/2012/02/james-kennedy-recess-appointments.php.

This article was prepared for publication by Sean Gallagher, an Assistant Editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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