Monday, March 28, 2016

Does the Senate's Refusal to Give "Advice and Consent" on Garland Raise an Issue for the Courts?


In Marbury v. Madison (1803) the court in a 4-0 decision established the principle that the courts could and would review Congressional and Executive actions for consistency with the constitution. The judicial power of the United States is extended to all cases arising under the constitution, said Justice Marshall. If Congressional or Presidential action implicates the constitution, the courts get to interpret the constitution and decide its meaning.

President Obama has nominated Judge Merrick Garland to replace Justice Scalia.  The Senate, however, has announced that it will not consider or vote on Judge Garland, or any nominee, until after the next President is elected in November.  This deviates from what the Senate has always done.  "The Senate," reports the New York Times, "has never taken more than 125 days to vote on a [Supreme Court nominee] from the time of nomination; on average, a nominee has been confirmed, rejected or withdrawn in 25 days." The practice has not been "put the nomination on the shelf for 11 months until the next president is seated."

Jason Mazzone and Robin Bradley Kar argue that such a unilateral delegation of the President's powers from a sitting president to a future president violates Art. II, Section 2 of the constitution. Jonathan Adler, professor of law at Case Western University in Cleveland, Ohio, argues that the Senate may discharge its "advice and consent" role in any manner it chooses, including doing absolutely nothing until the next president is seated. [See his update HERE.] Who is right? Doesn't  Marbury suggest that this is a question of constitutional interpretation that should be decided by the courts?

In connection with my initial post on the Garland nomination, Lyle Denniston at SCOTUS blog kindly pointed me to NLRB v. Canning for an illustration of the "Senate's awful power to conduct its business as it sees fit." The suggestion is that Canning is an example where the Supreme Court appears to have endorsed the view that the Senate has nearly unfettered control over how it conducts its business and that it may exercise its "advice and consent" power in the way Adler suggests.

I think Canning suggests nothing of the sort. Let's take a look.

The Recess Appointments in NLRB v. Noel Canning (2014)

In Canning a Pepsi Cola distributor unlawfully refused to enter into a collective bargaining agreement with a union. The National Labor Relations Board (NLRB) ordered him to execute the agreement and to make employees whole in accordance with the agreement. Canning sued, challenging the authority of the board to make such an order. Three of the five judges on the NLRB panel, he alleged, were invalid (Obama) recess appointments and hence the board lacked the authority to make any order whatsoever. The U.S. Supreme Court agreed and held these particular recess appointments to be invalid.

But as in Marbury, all the action in Canning happens in the discussion.

Depending on how one viewed the Senate's actions relating to the Canning recess appointments, the Senate was either in recess for five weeks, or it took a series of three day mini-recesses interrupted by pro forma sessions. The Senate adjourned on December 17, 2011 and did not return for regular business until January 23, 2012. However, by unanimous consent, the Senate said that it would hold pro forma sessions every Tuesday and Friday during which no business would be conducted--and, presumably, during which it was understood that most Senators would be absent. The Senate duly marked its pro forma sessions in its records. President Obama appointed the three challenged NLRB judges in a two day window between  pro forma sessions on January 3 and 6, 2012.

The court in Canning refused to look behind the veil of the Senate's pro forma Tuesday and Friday sessions. Specifically, the court would not be drawn into an examination of whether the pro forma sessions were a sham solely intended to thwart the President's ability to make recess appointments. "We have held all matters of method are open to the determination of the Senate," said Justice Breyer, "as long as there is a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained, and the rule does not ignore constitutional constraints or violate fundamental rights."  Canning at p 34. 

The fact that the Court deferred to the Senate's rules and procedures and practices with respect to its pro forma sessions lends support to the argument that the Senate can organize its workings any way it sees fit, and the court will not scrutinize these practices. But in Canning, although the Court deferred to the Senate and its rules regarding setting of sessions and recesses, the Court emphatically did not defer to the Senate in examining the constitutional parameters of the recess appointments clause. In the Garland matter, there is no Senate black box of procedure: the Senate majority leader has announced clear and strong that the Senate will hold no hearings, and will provide no advice and consent regarding the Garland nomination, and intends to defer any consideration of a replacement judge for Scalia until the next president is elected. 

NLRB v. Canning suggests that the Supreme Court would not hesitate to interpret the meaning of Article 2, Section 2 in a manner that it deems consistent with past Senate practice, and the needs of a well functioning government. There is much in Canning that should make Mazzone and Kar optimistic that a challenge to the Senate's attempt to delegate the power to fill a Supreme Court vacancy from a sitting president to a future president would find a receptive audience at the Court. 

The "Advice and Consent" Process is Caught in Partisan Bickering: Court Intervention Could Help.

When the constitution was drafted Congress only met once a year for not very long. It was foreseeable, indeed likely, therefore, that vacancies would occur in the Executive branch, and that the President may need to appoint judges (and others) while Congress was not in session. Therefore, the Founders provided for an exception to the "advice and consent" clause: "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." For most of our history this proved uncontroversial. 

But the country has changed. Since the beginning of the 20th century Congress has been in session more or less continuously, with only relatively short recesses and inter-session breaks. Arguably, therefore, there is less need for recess appointments. 

In the past couple of decades, however, the Senate has obstructed the president's primary appointment route for cabinet heads, lower executive branch officers, and judges for partisan political reasons. From 1987 to 2005 the nomination and confirmation of non-cabinet agency heads took an average of 236 days. See NLRB v. Canning at p. 17. As Sandy Levinson has observed, "One can 'starve the beast' almost as easily by refusing to allow the appointment of officials charged with administering the national government as by refusing to fund it."As a result, Presidents began to use recess appointments as a way to fill vacancies in light of the Senate's "advice and consent" obstruction. This raised the fear among some--e.g. Justice Scalia expressed this fear in his dissent in Canning-- that aggressive use of recess appointments by presidents could "nullify the Senate's role in the appointment process."  

Not to worry. Justice Scalia's hyperbole was entirely misplaced in light of Justice Breyer's Canning decision. The decision shares a lot with Marbury: like Marbury it strongly asserts the court's role in interpreting the constitution, and like Marbury it affirmed a right but ultimately refused to grant a remedy.  In Canning, the Court affirmed the president's right to make recess appointments but, in reality, it provided a roadmap for the Senate to block recess appointments. 

An Ambiguous Clause that Needs Interpretation

The court noted that this was the first time it was called upon to interpret the recess appointment clause (Article II, Section 3). The court noted that the clause is ambiguous ("fill up ... vacancies that may happen during the recess of the Senate"). Specifically was this intended to apply to inter-session recesses only, or does it also apply to intra-session recesses? Does this apply only to vacancies that first "happen" during a recess, or does it also apply to vacancies that "happened" while the Senate was in session but continued into a recess? And how long must the recess last for the President to exercise a recess appointment? 

As in Marbury, the Canning court strongly asserted its role and responsibility to resolve these types of ambiguities. Resolution of constitutional ambiguity is not what the court left to the Senate's internal workings. The majority held that 1) the recess appointment power applies to intra-session recesses as well as inter-session recesses; 2) that, although a more natural reading of the "happen during the recess" clause would be that the vacancy must first be created during the recess, a better interpretation in light of the overall purpose of the provision and the needs of government is that it also applies to a vacancy that first "happens" while Congress is in session but continues into the recess; and 3) that in looking at the history of how presidents and the Senate have historically handled recess appointments, the duration must be for a minimum of 10 days.  The court split 5-4 along the usual lines in how to resolve these ambiguities, but all Justices were in agreement that it was absolutely the court's role to interpret the recess appointment clause. 

Does Canning Suggest the Court Would Defer to Mitch McConnell's attempt to Deprive Obama of the Ability to Appoint a New Justice?

I think not. The Court made clear in Canning that its deference, even with respect to the Senate's inner workings, is not absolute. For example, the Court noted that the purpose of the recess appointment clause is for the Federal Government to keep functioning while the Senate is unavailable. "This purpose would count for little were we to treat the Senate as though it were in session even when it lacks the ability to provide its 'advice and consent.'" In other words, if it was apparent that the Senate in fact did not have the capacity to act during its pro forma sessions, the court would ignore the pro forma session (and would consider the recess to be uninterrupted). 

The Senate, of course, knows how to take a hint. It seems clear that from now on, there will be no more recess appointments unless the Senate wants there to be one. 

But this does not mean we should conclude the court would defer to the Senate's internal rules in considering a Senate refusal to exercise its "advice and consent" role with respect to judge Garland, or anyone else the President might suggest. This does not mean the Court would permit the Senate to effectively block the main path for the appointment of judges and delegate the presidential power to appoint a judge from a sitting president to a future president, not to be determined for nine months. 

Nothing about Canning suggests the court would be shy about interpreting the constitution in order to resolve the dispute framed, for example, by Mazzone/Kar and Adler. 

Consider these observations from the majority in Canning:
  • There is a tension between, on the one hand, the President's continuous need for the assistance of subordinates, and Senate practice that might delay appointments on the other hand. Will the Supreme Court look kindly on the Senate holding up the appointment of a replacement justice until the next president...., or perhaps the president after that? I don't think so. 
  • The court noted that it places significant weight on historical practice in interpreting ambiguous provisions.  Will the Court look at Article 2, Section 2 and the fact that the Senate has acted (on average) within 25 days on every appointment, and never delayed longer than 125 days and conclude that Mitch McConnell can tell President Obama to take a hike, we'll provide advice to the next president...., or the one after that? Will the court look at the Senate's own explanation of what it does in this process and ignore it? I don't think so. 
  • In a separation of powers case, as in any other, it is the duty of the judicial department to say what the law is. Will the court say the law is the Senate can willy nilly torpedo the smooth functioning of government? I don't think so. 
  • Justice Breyer quoted from a James Madison letter to Spencer Roane: "It was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms and phrases necessarily used in such a charter... and that it might require a regular course of practice to liquidate and settle the meaning of some of them." Does that sound like a court that will hesitate to tell the Senate what its role is in the nominate-advise/consent-appoint scheme in Article 2?  I don't think so. 
  • Justice Breyer was critical of Theodore Roosevelt's attorney general, who in a memo suggested that the recess appointment power did not extend to intra-session recesses: "Knox all but confessed that this interpretation ran contrary to the basic purpose of the Clause. For it would permit the Senate to adjourn for 'several months' to a fixed date, and thereby seriously curtail the President's power of making recess appointments." Does this sound like a court that will hesitate to tell Mitch McConnell what's what? I don't think so. 
  • The constitution is intended to endure for a long time, noted Justice Breyer. Does this sound like someone who will hesitate to impose a duty on the Senate to "do its job" when necessary to make the constitutional framework endure? I don't think so. 
  • The purpose of the recess appointment clause, said Justice Breyer, is to ensure the continued function of the Federal Government. This purpose would count for little, he said, were we to treat the Senate as though it were in session even when it lacks the ability to provide its "advice and consent." Does this sound like the court would be willing to look at the "advice and consent" clause in Article 2, Section 2 with an eye towards the needs of the continued function of the Federal Government, including the need to have a timely replacement of justices departed from the Supreme Court.  I think so. 
The Canning court emphasized that the recess appointment is a subsidiary, not the primary method of appointing officers of the United States. The Federalist papers make clear that the founders intended the appointment with advice and Consent of the Senate to be the norm. But for appointment with advice and consent of the Senate to be the norm, the system must be functional. 

Over the past 30 years the appointment process has steadily broken down. In Canning we see that the Court did not hesitate to explain and give definition to the recess appointments clause in order to make it workable. The Court gave definition to the type of recess that would give rise to the recess appointment power, to whether a vacancy must happen during a recess, and how long such a recess must be in place before the power can be exercised. 

Similarly, the appointment with "advice and consent" of the Senate clause is ambiguous. How should the Senate exercise its "advice and consent power?" In light of more than two hundred years of practice, how long does the Senate have to act? What happens if the Senate fails to exercise its advise and consent role? 

All of these questions are ripe for the Court to decide in the Garland case. Marbury, Canning, and hundreds of cases in between suggest that the Court would not shy away from its referee role between the President and the Senate.

The question is who has standing to bring such a suit, how should it be framed, and what's the remedy for a violation?

You can follow me on Twitter @RolandNikles.





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