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 Court’s liberal wing). Such a strategy, particularly when it is bound to fail, will win the opposition no (new) supporters and no (future) elections.

Seth

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=956164, http://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=959051, http://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=962100, http://tinyurl.com/jaj4ysm; Brian C. Kalt, Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman, 101 Nw. U. L. Rev. Colloquy 108 (2007), https://ssrn.com/abstract=962762, http://tinyurl.com/h7vc49n.