Justices to Decide the Scope of Recess-Appointment Authority

Constitutional case tests presidents' power to appoint.

, The National Law Journal

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The recess-appointments clause states: "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."

THE QUESTIONS

The justices have agreed to decide:

• When does "the Recess" of the Senate occur? Is it only between the two annual sessions of a Congress, or can it occur during a session? The appellate court said it is only between the two annual sessions.

• When does a vacancy "happen" for purposes of the recess-appointment power? Must it happen during the recess, as the appellate court held, or may it be a vacancy already existing when the recess occurs?

• And, finally, may the president make recess appointments when the Senate is convening every three days in pro forma sessions?

"The D.C. Circuit opinion was very broad and basically would, if adopted, in effect hold most past recess appointments as invalid and would limit what presidents may be able to do in the future," Gerhardt said. "One big question for the Supreme Court is: 'What do we think about going that broadly or is there a way to rule more narrowly?' There are far more ways to rule more narrowly."

To decide that the D.C. Circuit was right on when a vacancy may "happen" would require overturning the practice going back at least to President James Madison of filling existing vacancies during a recess, said Edward Hartnett of Seton Hall University School of Law. "You're talking about a very, very long time."

Harnett, whose 2005 law review article on the clause has been cited by both sides in the case, added that to affirm the appellate court's ruling that recesses occur only between sessions "is less dramatic, but still pretty big. We know intrasession appointments have occurred since the first President Johnson's administration. The justices would be saying we've been wrong since then."

And some of those appointments were federal judges, including Supreme Court justices, Gerhardt noted. "What happens to those? Was everything [Justice William] Brennan did unconstitutional?"

Gerhardt and Hartnett agree a narrower approach would focus on whether the 2012 pro forma sessions actually were a recess.

The administration argues they were because the Senate itself said no business was to be conducted and the Senate was unavailable for communications from the White House. A subsequent Senate order, it adds, even called the period a "recess." Jones Day's Noel Francisco, representing Noel Canning, countered that the Senate has used pro forma sessions for various constitutional purposes since at least the 1850s. "That long-standing practice is proper, given that the Senate is fully capable of conducting Senate business at each pro forma session. It is, moreover, the Senate, not the President, that has constitutional authority to decide whether or not it is in session, and the Senate explicitly concluded it was in session here."

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