As we end 2016, we have an unusually large number of vacancies in both the executive branch and the judiciary. As anyone not living under a rock knows, that’s no accident. Getting Obama appointments approved by the Senate was always a hard slog, and became virtually impossible after the Republicans took over the Senate in 2015. This doesn’t merely impact the waning days of the Obama Administration. If Clinton wins the White House, it means that the Administration will start with a large number of important holes. Even if the Democrats also retake the Senate, it will take months to bring the Executive branch up to functioning, never mind the judiciary. If Clinton wins and Republicans keep the Senate, we are looking at continuing gridlock and dysfunction until at least 2018 and possibly beyond.
In my own little neck of the policy woods, this plays out over the confirmation of Federal Communications Commissioner Jessica Rosenworcel (D). Rosenworcel’s term expired in 2015. Under 47 U.S.C. 154(c), Rosenworcel can serve until the end of this session of Congress. That ends no later than Noon, January 3, 2017, according to the 20th Amendment (whether it ends before that, when Congress adjourns its legislative session but remains in pro forma session is something we’ll debate later). Assuming Rosenworcel does not get a reconfirmation vote (although I remind everyone that Commissioner Jonathan Adelstein was in a similar situation in 2004 and he got confirmed in a lame duck session), that would drop the Commission down to 2-2 until such time as the President (whoever he or she will be) manages to get a replacement nominated and confirmed by the Senate. Given the current Commission, this would make it extremely difficult to get anything done — potentially for months following the election. It would also force Chairman Tom Wheeler to remain on the Commission (whether he wants to or not) for some time.
From the Republican perspective, however, this has advantages. If Clinton wins, it means that the FCC is stuck in neutral for weeks, possibly months. Since Republicans generally do not like Wheeler’s policies, that’s just fine. By contrast, if Trump wins, Republicans will have an immediate majority if Wheeler follows the usual custom and steps down at Noon January 20. So even though Republicans promised to confirm Rosenworcel back in 2014 when the Ds allowed Commissioner Mike O’Reilly (R) to get his reconfirmation vote, they have plenty of reasons to break their promise and hold Rosenworcel up anyway. Not that Senate Republicans have anything against Rosenworcel, mind you. It’s just (dysfunctional) business.
Again, it’s important to remind everyone who obsesses about communications that this is not unique to Rosenworcel. From Merrick Garland (remember him?) on down, we have tons of vacancies just sitting there without even the virtue of a bad excuse beyond “well, we’d rather the government not function if someone on the other side is running it.” While I keep hoping this will change, I don’t expect either political party to have a change of heart around this following the next election.
Fortunately, I have a plan so cunning you can stick a tail on it and call it a weasel. On the plus side, if I can get the President to go along with it, it will not only keep things working between January 3, Noon, and January 20, Noon. It will also give the Republicans incredible incentive to move Clinton’s nominations as quickly as possible. On the downside, it’s not entirely clear this is Constitutional. I think it is, based on the scanty available case law (mostly Nat’l Labor Relations Bd v. Canning). But, as with test cases generally, I can’t guarantee it. Still, like the idea of preventing a U.S. default on its debt with a trillion dollar platinum coin, it can’t hurt to think about it.
For the details of what I call “Operation Midnight At Noon” (throwback to the Midnight Judges), see below . . .
How The Heck Did We Get Into This Mess?
Under Article II of the Constitution, the President, appoints officers “with the advice and consent of the Senate.” According to our old buddies at the Federalist Papers, notably Alexander Hamilton in Federalist 76, the Senate should have no reason to block appointments indefinitely, since the President will just keep appointing people. OTOH, requiring Senate approval would, Hamilton believed, act as a check against favoritism or corruption. Hamilton was dismissive of the notion that the Senate and the President could be so at odds with each other that the Senate would just keep blocking appointments indefinitely to keep the government from functioning. #irony.
Additionally, under Article II, in the event the Senate is recessed, the President may “fill up all vacancies” with temporary appointments (called, unsurprisingly enough, “recess appointments”), that last until “the end of their [the Senate’s] next session.” Congress generally meets in two sessions, one each year, with a recess in the middle. Under Article I, both Houses of Congress decide when to adjourn the session, although Under Article II the President may adjourn both Houses of Congress “in the case of disagreement between them with respect to the time of adjournment.”
So, great system that takes care of all contingencies, right? Sadly, Hamilton & friends did not realize just how nasty party politics would get. In some ways, Senate confirmation turned into a good check to drive the Executive more toward the center in divided government. But it also provided a way for the Executive and the Congress to really punish each other if they feel like it and don’t give a crap about the overall impact on things like functioning government, institutional legitimacy, and actually getting stuff done. Without getting into which side started it (“they did!” No, they did!”), we are now at a place where Republicans pretty much don’t want to confirm Obama appointments — particularly at this point because we are almost done with the Administration. As noted above, from a pure partisan strategy matter, why would you give Obama a bunch of appointments at the end of a term? If nothing else, wait and see if Clinton wins and who holds the Senate.
Recess Appointments.
During the George W. Bush Administration, Bush and Democrats went head-to-head on a lot of administrative and judicial appointments. One way Bush dealt with this was by making lots of recess appointments every time the Senate and House adjourned. So, in 2007, when the Dems took back the Congress, they refused to officially adjourn (what we call adjourning sine die; Latin for “school’s out for summer!“). Instead, when they went on legislative recess, they continued to meet pro forma. (Latin for “just messing with you. Psyche!”) Every 3 or so days, members of the House and Senate would meet for about 15 minutes and then adjourn. This little bit of legislative magic prevented President Bush from making any recess appointments.
That worked so well that when the Republicans took over the House in 2010, they did the same thing to Obama. If you wonder how the Republican House could keep the Democratic Senate from adjourning sine die (“for realsies”), look at Article I Section 5, which requires that both Houses must agree to the time of adjournment. So as long as the House remained in pro forma session, so did the Senate. As a result, Obama could not make recess appointments. After many years of Republicans in the Senate dragging their feet endlessly, Obama tried to make some recess appointments during the pro forma session of the Senate on January 4, 2012.
This comes up to the Supreme Court in 2014 in a case called NLRB v. Canning. The Supreme Court clarifies 3 important points about what constitutes a “recess” for purposes of the Appointments Clause.
(1) A “recess” refers not only to a break between sessions of Congress but also to any break during the sessions when Congress adjourns sine die.
(2) The President may fill a vacancy created prior to the recess, not simply a vacancy created during the recess. However;
(3) A recess only occurs when the session ends or when Congress adjourns sine die. As long as the Senate continues to meet, even if it is only meeting pro forma and does not conduct legislative business, the President may not exercise the power to make recess appointments.
So that looked like it for recess appointments for Obama. In 2013, the Democrats eliminated the ability to filibuster judiciary and executive branch appointments, which allowed Obama to get a bunch of actual Constitutionally OK appointments through in 2013-14. But then the Republicans took back the Senate in the 2014 elections. As a consequence, the Senate neither adjourns for recess nor moves appointments.
All is not lost for those, like Commissioner Rosenworcel, awaiting a confirmation vote — particularly for an office with a term that extends for a number of years into the next Administration. The Senate might move some appointments in the lame duck session after the election for a number of reasons. If the Democrats also take control of the Senate, Republicans may want to confirm folks they know rather than risk that a Clinton Administration and a Democratic Senate will appoint folks even less to their liking. But if the Rs either win the White House or the Senate, that incentive goes away.
Which brings me to my cunning plan and “Operation Midnight At Noon.”
So What Is Operation Midnight At Noon?
Under the XXth Amendment, the terms of the members of Congress elected in the election of November 2014, or the terms of the members of the Senate elected in 2010, end at precisely Noon EST on January 3, 2017. At that moment, the 113th Congress is adjourned Sine die as a function of law. The Senate and House must then reconstitute themselves and be called to Order. In the Senate, this will be done by Vice President Biden. Under Article I Section 3, Biden will still be President of the Senate, with the responsibility to both adjourn the 114th Senate sine die and to call into session the 115th Senate, since Biden’s term as Vice President does not end until precisely Noon EST on January 20, 2017. You can find the details for how the Senate manages this in this Congressional Research Service Report. The First Day of a New Congress: A Guide To Proceedings On The Senate Floor.
In practical terms, it means that there are at least several seconds, possibly even several minutes, between when the 114th Senate adjourns sine die and when the 115th Senate is formally reconvened. During that time, under even the strictest reading of the Recess Appointments Clause, the President may make recess appointments. In our age of modern communication, a well prepared President and Vice President may fill all existing vacancies with recess appointments. Even appointing Merrick Garland or someone else to the vacant Supreme Court seat.
So You Mean a 10-second Delay Between Sessions Counts As a Break, While Months of Pro Forma Sessions Don’t? That Can’t Be Right!
Again, as with all test cases, I can’t guarantee it it works. And in fact, the language in NLRB v. Canning, which is pretty much the only Supreme Court authority on the subject, is not exactly encouraging. At first, in rejecting the minority opinion, it looks pretty good.
“The greater interpretive problem is determining how long a recess must be in order to fall within the Clause. Is a break of a week, or a day, or an hour too short to count as a “recess”? The Clause itself does not say. And JUSTICE SCALIA claims that this silence itself shows that the Framers intended the Clause to apply only to an intersession recess. Post, at 12–13. . . .
“Moreover, the lack of a textual floor raises a problem that plagues both interpretations—JUSTICE SCALIA’s and ours. Today a brief inter-session recess is just as possible as a brief intra-session recess. And though JUSTICE SCALIA says that the “notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting,” he must immediately concede (in a footnote) that the President “can make recess appointments during any break between sessions, no matter how short.” Post, at 11, 15, n. 4 (emphasis added).”
This would seem to fully endorse Operation Midnight At Noon. But, of course, Scalia was in the minority. We then move on to the majority opinion.
“Even the Solicitor General, arguing for a broader interpretation, acknowledges that there is a lower limit applicable to both kinds of recess. He argues that the lower limit should be three days by analogy to the Adjournments Clause of the Constitution. Tr. of Oral Arg. 11. That Clause says: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” Art. I, §5, cl. 4. We agree with the Solicitor General that a 3-day recess would be too short. (Under Senate practice, “Sunday is generally not considered a day,” and so is not counted for purposes of the Adjournments Clause. S. Doc. No. 101–28, F. Riddick & A. Frumin, Riddick’s Senate Procedure: Precedents and Practices 1265 (hereinafter Riddick’s).) The Adjournments Clause reflects the fact that a 3-day break is not a significant interruption of legislative business. As the Solicitor General says, it is constitutionally de minimis. . . .
“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 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.”
So that would seem to be the end of the matter. But is it? After all, the Majority did not have before it the question of a Constitutionally mandated recess under Amendment 20. Accordingly, the part dealing with the intercession recess (which this would be) is dicta (Latin for “not essential to the holding so I can ignore it.”)
Lets assume you could get away with it. Won’t All The Recess Appointments Just Go Away When the Administration Ends January 20 at Noon?
Under the Constitution, the terms of recess appointments last until the end of the next session of Congress. So anyone appointed will last until January 2018, when the second session of Congress begins.
Won’t Clinton Object, Since She Won’t Be Getting Her Choices In?
No, and this is the really fun part. If Obama plays it right, he can make it so that Republicans will be positively panting to confirm Clinton’s appointments.
Excuse me?
Suppose Obama, on January 3, 2017, Noon EST, has a list of extremely progressive folks to make as recess appointments. People conservative Republicans will positively haaaaate for ideological reasons. Folks who could never get appointed through the Senate in a million years. Folks whom Hillary would never appoint without fear of pissing off the Republicans — and possibly even the centrist Ds. If Obama named them as recess appointments, the next Senate would have a choice: confirm Clinton’s more moderate appointments or keep the radical progressives in until January 2018.
Wouldn’t Republicans Blame Hillary and Retaliate Against Her?
First, what, exactly, could Republicans do worse than what they are already doing, i.e., not confirming appointments and refusing to pass legislation. Second, it’s not like Hillary could do anything to stop it. It would all be that meddling Barack Obama and his VP (rut roh!). Hillary would be doing her level best to clean up the mess by bringing in more “mainstream” acceptable appointments. It would be entirely up to the Republicans to resolve the problem by assuming the appointments.
So Let’s Go Back To The Real Objection. While You Can Make An Argument For This, It Really Looks From the Majority Opinion In Canning That You Need At Least A 3 Day Recesses.
True. Which brings me to the world of ambiguity. Can the Dems push the Rs to confirm the pending appointments (at least some of them) given the possibility of such an end run. After all, the Senate Recess is not exempt from House consent due to length, it is exempt from House consent as an operation of the 20th Amendment — an entirely different matter. Certainly this goes against the underlying theory of the Majority that “recess” means enough time to constitute more than a technicality enabling the President to make an end run around the appointments clause. But it is enough a technical difference to create an argument to start the cycle all over again.
Normally, I would never recommend such a thing. Playing chicken with the Constitution is positively loathsome. But, to quote Tolkein: “You will not save the Shire by being shocked and sad.” We are now in a thoroughly dysfunctional mess, where nothing short of a threat of a Constitutional Crisis seems to move anyone to action.
So this becomes something of a nuclear option. The President can do it. But it creates all manner of uncertainty if it is ultimately overturned. But it also pushes the Republicans to consider that it might *not* be overturned, driving them to potentially negotiate over which (and how many) pending nominations would they get through in lame duck to avoid the issue altogether.
Conclusion
Once again, I truly hate the reality that we are condemned to playing Constitutional games to get functional government. I wish it were otherwise. I wish we did not have a Senate that refuses confirmation, even of universally acknowledged well qualified candidates, for short term political gain.
But that is the reality we play in, and the only way we get out of that reality is by persuading enough people that the old more functional way of doing things was there for a reason. It is a form of legislative mutually assured destruction (MAD). And while no one liked living under the threat of nuclear annihilation, it did keep the peace between the U.S. and the U.S.S.R. for about 5 decades. If our political parties are reduced to viewing each other as “enemies,” then we will need to find an equivalent to MAD for our dysfunctional government.
Stay tuned . . .