My post last night was based on the widely-reported but seemingly incorrect claim that the Senate was currently in recess, allowing the President to make a recess appointment to fill the vacancy on the Supreme Court created by the death of Justice Scalia.
In fact, it appears that the Senate will be holding pro-forma sessions during the break. Under the Supreme Court decision in NLRB v. Noel Canning, such sessions, even if no legislative business is done, establish that the Senate is not in recess:
For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.
That same decision found that, in general, the Senate must be out of session for at least 10 days for a recess appointment to be valid. Thus it would appear that, if Sen. McConnell is really determined to stonewall an appointment, the President cannot use the recess-appointment power to tunnel under that stone wall.
However, at least according to one reading of the decision, the President and his Democratic allies in the Senate have the ability to make the maintenance of that wall intolerably expensive, in political terms, and give everyone a huge horse-laugh at the Republicans’ expense. I think they should do so.
To recap the earlier argument:
- Scalia’s death leaves a court divided 4-4 on important issues. If the vacancy remains unfilled for more than a year, the court will be unable to make decisions with precedental value, leaving lower-court rulings undisturbed. As a result, the law may say one thing about about immigration or labor rights or birth control in one federal judicial circuit and say the opposite in the others.
- Worse, ifÂ the Court needs to arbitrate what may become a Constitutionally hairy Presidential election, it might well deadlock.
- Worse yet, the election of a President Clinton – or, even more so, a President Sanders – with a Republican-controlled Congress could set up major Constitutional confrontations, again calling for resolution by the Court, which again could be unable to come to a decision.
- The Constitution says that the President “shall” nominate the Justices. That makes it his duty.
- Ronald Reagan argued in 1988 that keeping the court up to strength is a “Constitutional obligation” that both the President and the Senate had a duty to fulfill.
- Since the Senate Majority Leader has indicated the Senate’s unwillingness to carry out that function, it is arguably the President’s duty to fill that vacancy, if he has the power to do so.
- The recess-appointment authority creates just that power.
- Ergo, the President should make a recess appointment, or threaten to do so to induce McConnell to agree to a timely floor vote on a nominee submitted in due course.
However, Â under Noel Canning, there is no recess, and therefore no recess-appointment authority, as long asÂ the Senate keeps holding pro-forma sessions at least once every ten days. But – according to Supreme Court advocate and Scotusblogger Tom GoldsteinÂ – the pro-forma trick works only because holding the meeting shows that the senate hasÂ “the capacity to act, under its own rules.” That capacity rests on a presumption: according to the rules of the Senate, a quorum is presumed to be present unless someone demands a quorum call. The Senate can therefore do business, or even pass legislation by unanimous consent, unless someone points out that a quorum is not, in fact, present.
Once a quorum call is demanded, the Senate cannot take any legislative action until an actual quorum is established. If that never happens, then the Senate lacks “the capacity to act, under its own rules.”
I think he has to fold. Or maybe, when the President makes it clear that he’s ready to go to the mat on this one, McConnell agrees to hearings and an up-or-down floor vote on the President’s nominee. If that nominee is well-chosen, voting against him would also create political heartache for vulnerable Republican Senators.
The current recess is only scheduled for 10 days, so the strategy won’t work now. And that means the President should promptly send forward a nominee in the regular course of business, even if that person isn’t the one who would be named as a recess appointee if push came to shove.
Pass the popcorn.