Recess appointment, Round II

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:

  1. 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.
  2. Worse, if the Court needs to arbitrate what may become a Constitutionally hairy Presidential election, it might well deadlock.
  3. 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.
  4. The Constitution says that the President “shall” nominate the Justices. That makes it his duty.
  5. 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.
  6. 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.
  7. The recess-appointment authority creates just that power.
  8. 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,  under Noel Canning, there is no recess, and therefore no recess-appointment authority, as long as the Senate keeps holding pro-forma sessions at least once every ten days. But – according to Supreme Court advocate and Scotusblogger Tom Goldstein – the pro-forma trick works only because holding the meeting shows that the senate has “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.”

So it looks as if the Democrats could call McConnell’s bluff.
According to the currently posted schedule, the Senate plans to take a break from Friday, July 15 to Monday, September 5 and again from October 10 to November 11, presumably with pro-formas every three days (because the Constitution forbids either house to adjourn for more than three days without the consent of the other).  So, on Monday, July 18, McConnell or one of his deputies shows up in the chamber, with another Republican to act as President Pro Tem, planning to meet and adjourn. But – surprise! - Harry Reid or some other Democrat also shows up and says, as soon as the session is called to order, “Point of order! Mr. President, I make the point of order that a quorum is not present.” (The presiding officer has no right to ignore that, but just for insurance Joe Biden could actually show up, too, in his role as President of the Senate.)
Since there’s not merely no quorum present but no quorum in town, the pro-forma must adjourn: that’s the one action, other than compelling the attendance of absent members, either House can Constitutionally take with less than a majority.
Having established that the Senate is then in recess, and does not have “the capacity to act, under its own rules,” the President makes a recess appointment. Now McConnell has ten days from the date of the last actual session (or unchallenged pro-forma) to round up his troops. If he can do that, the recess appointment becomes invalid, because the Senate was not in recess for at least ten days. No Democrat is inconvenienced at all, except the one guy to make the quorum call; since the pro-forma isn’t going to take any real action, there’s no need to show up. But forty-nine Republicans have to drag their sorry butts back to DC, just to say “Present.” And as soon as they go home, the Dems do it again.
Not only does this put a serious crimp in the home-state campaigning of the Rs up for re-election; it makes the entire Republican Caucus a national laughing-stock, and makes the otherwise boring procedural story of the Senate refusing to do its job telegenic.
At that point, McConnell has two choices:
1. Keep playing the game, creating a great campaign issue for the Democrats and great heartache for his members facing re-election in Blue and Purple states;
2. Fold and let the recess appointment happen.

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.


Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

22 thoughts on “Recess appointment, Round II”

  1. Just a thought here—and certainly not one I'd advocate, but one worth noting all the same—is that the lower circuits are all noticeably further to the left than the Supreme Court. Were the SCOTUS to issue a non-binding slew of 4-4 opinions over the course of the year that amounted to no more than a salad of dicta (which I happen to think is unlikely, as my sense is that there would likely be some manoeuvring by the current Justices to create binding authority), the lower Circuit doctrines would stand.

    The consequence is that leaving Scalia's seat vacant costs a lot in jurisprudential inconsistency between Circuits, as you note; but this is at least partially mitigated by the absence of the Supreme Court's casting the long (and historically its most conservative) shadow over all the Circuits together.

    I haven't thought through all the reasons why this is bad in the long run, but I do know that it 1) is indeed bad in the long run, while 2) not being an unmitigated disaster.

    1. I don't think know what the court would do. On the more controversial and politically charged cases, I don't see how a fifth vote turns up unless the more liberal justices surrender (which seems quite possible) and join the conservatives to because it's up to them to prevent a crisis of legitimacy.

      I don't think you can have a 4-4 tie. Four votes is enough to accept a case but it isn't enough to create a decision. I would guess that if a fifth vote can't be found, the court would be obligated to DIG the case and whoever felt like venting could write something but it wouldn't be an opinion and it wouldn't even count as dicta.

      As you say, nearly all the circuits are more favorable to Obama's initiatives so it probably wouldn't be a problem to simply let the conflicts between the circuits build up for a few years and have a show down in the 2018 midterms on how to resolve the constitutional crisis.

      Beyond that, I'm not sure that having a functioning supreme court to say what the Constitution means is still particularly important. Maybe it was necessary for the elegant 18th Century system of divided and neatly apportioned powers crafted by the framers but in today's system where the Republicans act as a parliamentary party, I don't think a constitutional court is any more a necessity for this country than it is for the UK or Germany or France. We should have a constitution court and it can give its basically advisory opinions on certain things but it just ins't appropriate for a court organized with strict party discipline to be the final arbiter of what the Constitution means; we should recognize that the government of the day should have its way until it falls or is rejected by the people in an election.

      1. I've already speculated more wildly than I feel comfortable doing, so I'll offer nothing by way of conjecturing *how* a majority opinion would materialize. Maybe a liberal justice switches teams; maybe Kennedy temporarily forgets that he lacks vertebrae and creates a liberal majority. At this point, it's an exercise in reading tea leaves.

        Sure, you can have a 4-4 tie. As in Costco (, it usually ends up as a per curiam opinion, with a reversion to lower Circuit precedent (see 28 U.S.C.S. § 2109)—but not even that in every instance. For example, the Court ended up writing a 4-4-1 opinion in Asahi Metal Industry v. Superior Court in (1987), and it was mess. But it happened.

        As for your final paragraph, you're now talking about something very different altogether, namely the value of a Supreme Court at all. My opinions on Article III are still too inchoate to qualify me for commentary on this one.

        1. I think you're probably right that this isn't the right moment to discuss the continuing vitality of Art. III and Marbury v. Madison.

          As for whether the liberal justices will join majority opinions: I would say that if majority opinions would come into being it would be because the more liberal justices would feel an obligation to shore up the court’s “legitimacy”. Personally, I think they should stand their ground since we’re well beyond the point where that kind of kabuki is meaningful and have been since Bush v. Gore. As for Justice Kennedy, he won’t join more than once or twice with the liberals; he wasn’t ever anything except a conservative and I think the mournful assessments of his lack of courage are just wishful thinking.

          Yes, I somewhat overstated what would happen in a 4-4- tie and did so in a very confusing way. But, as you note, under 28 U.S.C.S. § 2109 the effect of that opinion is basically that the judgement being appeal from is affirmed and the case is treated as if the writ were dismissed as improvidently granted so it’s essentially the same outcome in my mind no matter how you get rid of the case without a precedent making decision.

          Asahi Metal was indeed a barely intelligible mess but that’s almost always the case with these per curium opinions which often feature a lot of promiscuous joining and writing of separate opinions. I would disagree, however, that it is a useful model for our current purposes since there were nine justices participating, eight of whom concurred in part of O’Connor’s opinion (which is probably the holding of the case) and then either wrote separately about all kinds of things that each justice claimed might be a holding of the case or joined opinions other than hers. Nevertheless, you did have eight of the nine justices agreeing with O’Connor in what was arguably the holding of the case so it really doesn’t support the idea that a tie vote can produce a genuine opinion.

          It turns out, however, that I’m probably wrong about how the 4-4 tie cases will be handled (basically our discussion). Your response prompted me to visit the SOCTUS blog where I found an extremely well reasoned post by Tom Goldstein. Goldstein argues that, in fact, the most likely outcome is that these cases will be held over for reargument—with the possibility that something else could happen if it looks like the cases couldn’t be reargued for another two terms. This seems like the much better analysis about what might happen to the 4-4- cases and I’ve revised my thinking accordingly.

          Here’s the link:

          1. A tie vote — if the Court chooses to decide the case — affirms the lower-court judgment, albeit without setting a national precedent. By tradition, no opinions are written in support of or in opposition to that judgment. Alternatively, whether or not a new Justice is appointed by October (but particularly if one is), they could choose to have the case re-argued next Term. Another possibility is that the Court could dismiss the writ as improvidently granted and not decide the case at all.
            A 4-4-1 decision establishes a Supreme Court-level, binding national precedent on the basis of the narrowest legal ground shared by 5 Justices that supports a judgment (i.e., affirm or reverse). What that ground of decision is, may sometimes be debatable (and the two pluralities may even opine on that), but with the rarest of exceptions there will be one.

          2. Yes, it's imprecise of me to have collapsed the formal distinction between 4-4 and 4-4-1 into the same thing.

            But, without rehashing the Williams—Kavanaugh debate on this in the D.C. Circuit, the Marks rule gets pretty muddy in application: should a rule articulated deep within a 4-Justice dissent be incorporated into the 4-Justice plurality and therefore be considered binding precedent, or is everything in the dissent off-limits in a 4-4-1 (or in a 4-3-2, or…, or…)? Suffice it to say that the question isn't settled, so it's a mess. Unless the SCOTUS articulates some brand new theory rejecting what lower courts had relied on, the lower circuits pick and choose, and you see the same result as if there'd been a 4-4.

            But, setting that aside, fair play. You're right.

          3. There should not be any legal point within your hypothetical 4-justice dissent that could be added to the 4-justice plurality to make a majority. Otherwise, it wouldn't be a full dissent (that is, a dissent from the judgment as well as from the opinion), but rather a "dissent" from the opinion and a concurrence in the judgment. But, setting that aside, I agree with you (and thought I had already suggested) that the Marks rule (the rule I tried to articulate) is troublesome in practice.

      2. "I don't think a constitutional court is any more a necessity for this country than it is for the UK or Germany or France." The UK doesn't have one, though the Supreme Court (ex-House of Lords) deciding on human rights cases is exercising a constitutional function. The French Cour Constitutionnel doesn't do much, since it can only IIRC be seised by the President or Parliament.. But the German Constitutional Court in Karlsruhe is of real importance. Partly because it's a federal country, and the rare disputes over competence between Bund and Länder have to be arbitrated. Its main function however is to limit Brussels federalism (in the European sense of centralisation). The BVG holds that the EU treaties trump German national law, but not the German Constitution, until such time as Europe adopts a true political constitution saying so. When a former judge, Professor Siegfried Broß, published an article saying that the ISDS provisions in the proposed transatlantic trade treaty were contrary to the German Constitution it was major legal news, and these provisions are effectively dead.

  2. I think we’re all, including Tim Goldstein, making the same assumption about whether the Senate can, in effect, declare itself to be forever in session and never in recess even if there’s nobody left in the Senate to transact the business of the Senate. So, yes, the Democrats could indeed call McConnell’s bluff if they were willing to take the heat and pay the price. Which, needless to say, is a laughable thought.

    If Pres. Obama could obtain a legal opinion along the lines suggested by you and Goldstein, saying that when the senators all go home and the Senate appears to be in recess, it is actually in recess and the president is entitled to make a recess appointment. He could then make a recess appointment. There would, of course, be a great deal of deeply wounded howling by the chattering classes but, assuming that Obama and the Democrats kept their nerve, there's several very bizarre questions about what might happen when the newly appointed justice showed up for work.

    The first question would be whether there's any institutional mechanism for refusing to accept a new justice and there appears to be none, particularly if the four more liberal justices were prepared to accept the new appointee. But there will be a crisis as court employees have to choose whose orders to obey and the printer and West Publishing must choose which decisions get printed.

    The second issue relates to the standing doctrine. Republican justices have developed a series of ostensibly severe limitations on the ability of people to maintain a lawsuit in the absence of quantifiable economic losses. They could do this because a very reliable majority gave them the ability to make exceptions that were advantageous to movement conservatives or to the Republicans—so, for example, an exception could be could be made on an ad hoc basis to block this kind of end run or to block Obama's climate plan. But without the five-vote permanent majority, there’s an impasse and no vote of the Supreme Court to block the new nominee—which inevitably results in a constitutional crisis.

    Similarly, the impasse would make it much easier for Obama to implement the remaining parts of his agenda. Partly because he could simply make recess appoints to everything that’s open (including judicial appointments) and partly because, as a practical matter, the Republicans on the USSC could not longer block him since, again, they would no longer have five automatic votes. Needless to say, this would result in a constitutional crisis of the first order and, following so soon on the heels of Bush v. Gore would really call into question the viability of institutions developed to address the needs of the 18th century.

    I share your enthusiasm but since the success of the plan depends on Senate Democrats taking aggressive action that will be deeply unpopular inside the beltway (and the even more compromised Democratic Party would need to support them), there’s not a snowball’s chance in Hell of pulling it off. Ronald Reagan beat the “movers and shakers” of the Democratic Party into submission and Bill Clinton finished the job with his “triangulation”. As an institution, the Democratic Party knows only how to roll over and beg for the approval of the beltway elites, if you’re counting on them for something like this, you’re bound to be horribly disappointed.

    1. One proposal floating on the right, should Obama presume to make a recess appointment, is to immediately impeach the appointed justice. Apparently this requires the Justice to recuse himself until his trial is over. It would be easy enough to delay the trial until the next President took office.

      What charge? Presumably, cooperating in an unconstitutional appointment.

      1. I think this highlights the political dilemma for the Republicans. My assumption, which I believe is the prevailing one among political pundits outside of movement conservatism, is that a constitutional crisis brought on by a recess appointment made only after it had become obvious that the Republicans wouldn't consider any Obama nominee or a crisis related to the absence of a ninth justice would play out pretty much as the previous crises precipitated by them over the budget, the debt ceiling or the funding of Planned Parenthood—which is to say disastrously. Perhaps worse, since for a majority of Americans, the GOP would be using impeachment as a way of achieving a political objective that they were simply incapable of gaining through the normal democratic processes.

        On the other hand, it's difficult to see a way for the Republicans to back down given the intensity of the feeling about Obama's lack of legitimacy as a president, and, indeed, about the Democratic Party's lack of legitimacy as a participant in the political process. At this point, with the pressure from the base and the all consuming focus by GOP candidates on improving their standing with the base, it's difficult to see a way out for the Republicans even if they leadership of the party thinks that bringing out a constitutional crisis in this way would be a terrible idea. I would say that it's better than even money that such an attempt would trigger a much bigger win for the Democratic presidential candidate and quite conceivably cost the GOP control of the Senate. That might be the death knell for a party of aging, mostly Southern white people who are clinging to power by manipulating the anti-majoritian bottlenecks created by Senate customs and the overrepresentation of Southern and rural states.

        This one could be for all the marbles—on both sides; a fundamental change in our system of government.

        1. Obama is good in this sort of situation, better than Mark or me or you or Holbo, and certainly better than McConnell. He won't do anything hastily, and anything he does do will have Plans B and C behind it. He will move gradually, to make sure that he is always seen as being reasonable and McConnell unreasonable.

          I would be surprised if Obama had not gamed out the risk of a CPP stay. It's a freely chosen state-based strategy. Democratic states will continue to plan as if, which must cover over half of all power plant emissions. The utilities won't be happy with Roberts for introducing 18 months of grave policy uncertainty into their investment planning. The CPP enabled the Paris Agreement, which is in the bag and won't be reversed just because of a delay in US implementation. Economics and grassroots pressure will continue to kill off coal. Zach Shahan: "total installed coal power capacity declined from 326.6 GW at the end of 2014 to 305.05 GW at the end of 2015. In other words, net, 21.55 GW of coal power capacity were taken offline in 2015."

    2. It's "Tom" Goldstein, Mitch and Mark, not "Tim." He's the publisher of SCOTUSBlog and principal at the Goldstein & Russell law firm in D.C., a Supreme Court boutique practice.

  3. I think a lot also depends on exactly what the senate leadership does in response to a nominee. If they refuse to hold hearings, they look like they're refusing to do their job and strengthen the case for a recess appointment. If they hold hearings and vote someone down (who will almost certainly be someone they've approved by a large margin for a previous appointment) they will have to face unpleasant questions about their pre-announcement that no nominee would be approved.

    I really like the quorum call plan, though. I wonder whether it would play out similarly to the way it has in state legislatures.

  4. There has not been a recess appointment of a Supreme Court justice since Eisenhower's appointment of William J. Brennan in 1956, which lasted several months until Brennan was re-nominated (and confirmed) in the ordinary course. There is a potentially serious conflict between the recess appointments clause and the guarantee of Article III that a federal judge, upon taking office, then serves for life (that is, "during good Behaviour"). Some constitutional scholars thus take the position that a judge or justice cannot logically be recess-appointed. I'm not sure President Obama would want to step into that controversy, where the Right is making hay (most of it B.S., but nevertheless somewhat effective in damaging his effectiveness) about the constitutional legitimacy of other important Executive actions.

  5. Reverting to the tied court prospect, Linda Hirshman at WAPO has come up with yet another Cunning Plan on the CPP stay:

    The suit against Obama’s environmental initiative, which the Supreme Court just stayed, came from the liberal D.C. Circuit, which had unanimously refused to grant the stay. Now the Obama administration can simply have the Environmental Protection Agency come up with a slightly different new plan and run to the liberal D.C. courts to bless it and refuse to stay it. It’s unlikely the now-divided Supreme Court would come up with a majority to stay the new rules: The vote to stay the old ones was (naturally) 5 to 4.

    Obama's whole shtick is that he's not Baldrick, a statesman above the fray, so this manoeuvre will not appeal to him. Unless the EPA finds that it has a legal obligation to revise and reissue the regulations, for example on the now impossible September deadline for states to submit compliance plans. Would you be surprised if the OLC found such an obligation?

    1. As a former EPA contractor, I certainly would not. The EPA gets sued all the time over procedural things like this, and sometimes the way judges rule in such a case creates something far more expensive or onerous than what the EPA had originally planned to do in the first place, and then Congress sometimes steps in after such a ruling with new legislation, which results in YET ANOTHER rulemaking.

    2. Note that she says that President Obama has stacked! stacked, I tell you! The court system with (shudder) liberal judges.

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