“If you want to tell people the truth, make them laugh, otherwise they’ll kill you.”— O. Wilde

Thursday, December 29, 2016

Ed Kilgore, At NY Mag's Daily Intelligencer, Asks President Obama To Use Recess Appointments: Kilgore's Strategy Won't Work & This Is Why

Ed Kilgore, at NY Mag’s Daily Intelligencer column, argues that President Obama should use his recess appointment power in the waning days of his administration. See Ed Kilgore, Here’s How Obama Could Go Nuclear on Trump and the GOP Before Leaving Office, NY Mag: Daily Intelligencer (Dec. 28, 2016, 8:39 AM), http://tinyurl.com/hnd458y. Once Upon A Time ..., this strategy might have worked. But not anymore: Kilgore’s proposed strategy is now plainly prohibited by the Supreme Court’s decision in NLRB v. Noel Canning, No. 12–1281, 134 S. Ct. 2550 (2014) (Breyer, J.). In Noel Canning, the Court held:

In sum, we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short [i.e., less than 3 days] that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.” 

Id. at 2567 (emphasis added)). Mitch McConnell, the Senate Majority Leader, will be sure to have no ten-day recesses prior to Trump’s taking office.

It might be argued, by a parliamentary literalist, that Noel Canning only controls true intra- and inter-session breaks within a single 2-year Congress. Here Congress is adjourning sine die: this is a break between two 2-year Congresses. (Cf. “You brought two too many.” http://tinyurl.com/gl7odhp). But even if Noel Canning is not controlling, even if the President could make valid recess appointments along the lines Kilgore suggests, the Senate (with the cooperation of the House and President) could immediately terminate the President’s recess appointments simply by adjourning and then immediately reconvening (or by doing so twice back-to-back). 

Why? Recess appointments only last until “the End of the[] next [Senate] Session.” Article 2, Section 2, Clause 3. If a determined Senate majority advances the calendar, terminates that session, and immediately convenes the next session, then … that will terminate the prior recess appointments. It is that simple.

Kilgore argues that the only route the Republicans would have to remove these recess appointees* would be through slow moving lawsuits which would take months, all the while leaving these appointees in place during the first year of Trump’s new administration. See Kilgore (“TR made 193 recess appointments at the beginning of 1903, and while the legality of the action has been questioned, it has never been clearly overturned. If Obama were to follow this procedure, it would take extensive litigation to reverse it, and it might stand after all.”). Kilgore is entirely wrong. No lawsuits would be needed—just two swings of the Majority Leader’s gavel. Just two swings and the recess appointees would be out.**

Kilgore’s bad advice simply makes the opposition look poorly informed and less than loyal to the Constitution and the rule of law (as established by the Supreme Court in an opinion drafted by the Courts liberal wing). Such a strategy, particularly when it is bound to fail, will win the opposition no (new) supporters and no (future) elections.


Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

My prior post: Seth Barrett Tillman, This Is What I Think And This Is What Other People Think Scholarship Looks Like, The New Reform Club (Dec. 27, 2016, 5:27 AM). [here]

* Obviously, we are discussing Judicial Branch appointees (and certain Executive Branch appointees) who have tenure in office: protection against removal by the President. 

** See Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007), https://ssrn.com/abstract=956164http://tinyurl.com/zaofnyc; Brian C. Kalt, Response, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy 88 (2007), https://ssrn.com/abstract=959051http://tinyurl.com/jkq2trc; Seth Barrett Tillman, Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, 101 Nw. U. L. Rev. Colloquy 94 (2007), https://ssrn.com/abstract=962100http://tinyurl.com/jaj4ysm; Brian C. Kalt, Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman101 Nw. U. L. Rev. Colloquy 108 (2007), https://ssrn.com/abstract=962762http://tinyurl.com/h7vc49n.


Fred Z said...

Your faith in the foolish Mitch McConnell is as foolish as he is. If it can be screwed up, Mitch McConnell is your man.

Daniel said...

I think your thesis that the Senate can easily circumvent any recess appointments by Obama is very compelling. It sufficiently intrigued me that I followed your links to Brian Kalt's two rejoinder law articles. Kalt concedes that "if the Senate could get the House to agree to a Tillman adjournment, the session would indeed end, and the President's existing recess appointments would indeed expire." Kalt then explores various impediments to this maneuver. However, all the impediments he broaches would fail in the current unique situation where one party controls both houses of Congress and the Presidency:

(1) Whether or not the Senate can unilaterally terminate its session, as opposed to requiring the cooperation of the House to adjourn and reconvene, in this case the Republican House will certainly cooperate with the Republican Senate to jointly and Constitutionally end a bicameral session.

(2) Kalt argues that the Senate has no good mechanism to reconvene a session by itself after it has adjourned. But here that is irrelevant, since President Trump can simply call Congress back into session.

(3) There are various arguments regarding ways the President could thwart the Senate (e.g., the President could call the Senate into a special session and then refuse to allow it to adjourn from that special session). Again this is irrelevant, since President Trump would be actively collaborating with the Senate to terminate Obama's recess appointments.

(4) Kalt argues that this maneuver, even if done with the House's cooperation so that it "would not be unconstitutional as such", would nevertheless be a "constitutional impropriety" which would have strong negative political ramifications. However, if Obama were to try to jam through a bunch of judicial appointments (including the Supreme Court) in the brief moment between when Congress adjourns its current session and convenes the new session, that would constitute at least as much of a "constitutional impropriety". It would provide ample political cover for Trump and the Republican majorities to terminate those recess appointments using this maneuver.

In conclusion, any action by Obama to make recess appointments would be easily undone, exposing Obama to ridicule and contempt without actually accomplishing anything. Knowing this, Obama will not attempt such action.

Anonymous said...

Trump doesn't become president until January 20, he cannot call Congress into session on January 3, 4, etc.

Daniel said...

True, Trump doesn't become President until January 20th. So what? That just means that Obama's recess appointments would stand for the 17 days between January 3rd and January 20th. Which also means that during that interim Judge Garland (and any other people Obama appointed to lower positions) would have to resign from their present jobs to (very, very briefly) take up their new positions. Which means that Trump would then have more judicial vacancies that he could fill with his own choices. Under those circumstances, I doubt that Garland or any other appointee would even accept such a recess appointment. And that would make it even more embarrassing for Obama. Bottom line: It ain't gonna happen.

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