Democrats Reap the Fruits of Filibuster Fecklessness at the D.C. Circuit Court

By Garrett Epps

On Friday, judges ruled that Obama appointments to the NLRB were unconstitutional. After years of Bush-era grandstanding, Democrats have no one to blame but themselves.

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Molly Riley/Reuters

In the Seventh Psalm, the ancient poet rejoices over his discomfited enemy: "He made a pit, and digged it," verse 15 exults, "and is fallen into the ditch which he made."

Masters of the pratfall, the Senate Democrats in 24 hours managed to fall twice into a pit that they made and digged themselves. Thursday evening, they approved a puny program of "filibuster reform" that will permit the Republican minority enormous leeway to obstruct majority measures and presidential appointments. Friday morning, they learned that a filibuster tactic they themselves created -- the "pro forma" session -- had now deprived the nation of a National Labor Relations Board. The stinging loss was handed down by a court where conservative dominance has been maintained for the past four years by aggressive use of the filibuster.

The D.C. Circuit's decision in Noel Canning v. National Labor Relations Board dealt with a difficult constitutional issue. There are strong arguments that the administration's position was wrong. But what is striking about Friday's decision is the panel's insistence on reaching the broadest result possible -- one that will make the problem of the filibuster even more difficult for the executive branch to deal with.

The precise issue in Canning was whether the president could make a "recess appointment" to the NLRB even though the Senate was holding "pro forma" sessions every three days. Here we delve into oracular text: the "recess appointments" clause of Article II § 2 cl. 3 says that "[t]he 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 idea is simple: For significant government appointments, the Constitution requires Senate confirmation; but the Senate isn't always meeting, and in a pinch the executive needs to be able to fill a vacancy and ask for approval later. 

The details, however, are profoundly difficult, and have been debated since the Washington Adminstration. What is "the recess of the Senate"? Does it mean whenever the Senate goes home for a few days, or only during the breaks between formal sessions? Second, when an office opens up while the Senate is in session, but the Senate goes into "recess" without confirming a successor, does that vacancy "happen" during the recess?

The Republican minority in the Senate hates the NLRB, whose job it is to make sure workers get a fair chance to bargain with their employers. So from 2010 to early 2012, the Republican minority simply filibustered all nominations to the board, with the result that the NLRB fell below its required quorum of three members. In late 2011, Republicans feared that Obama would make recess appointments when they went home for Christmas. They didn't control the Senate, and so to prevent the leadership from "recessing," they used their control of the House to engage in a constitutional trick. Under Article I § 5 cl. 3, "Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days ...." The House leadership refused to consent to a Senate adjournment, so every three days, one member who lived nearby showed up, convened the body with all the élan of Ben Stein in Ferris Bueller's Day Off, and then immediately adjourned. Senate Majority Leader Harry Reid was unhappy -- but the "pro forma sessions" trick was, in fact, one he himself had created during the George W. Bush Administration, as a way of blocking Bush's use of the recess power.

In January 2012, Obama, with the advice of his Office of Legal Counsel, concluded that "pro forma" sessions were not real sessions, and thus that the Senate was in recess. He appointed three members to the NLRB, which began doing business.

One matter that came before it was a complaint against a soft-drink bottling company in Yakima, Washington, that had allegedly reneged on a written agreement with its union. The union won an order against the company in front of the NLRB itself; the company appealed to the D.C. Circuit, however, arguing that the NLRB didn't really exist because three of its members had been "recess appointments."

In its decision, the D.C. Circuit panel did not even consider whether "pro forma" sessions could block a recess appointment, because it concluded that the president can only make such an appointment during "the recess of the Senate," which it decided could only mean the formal gaps between sessions of the Senate, not breaks in actual Senate proceedings. (Those, it said, would be "recesses," not "the recess.") That decision disposed of the question, but two judges of the panel -- over the objections of the third -- went on to state that the "recess power" can only be used at all when a vacancy actually occurs during "the recess."

The latter question has bedeviled interpreters since Thomas Jefferson asked Attorney General Edmund Randolph whether President Washington could recess-appoint the chief coiner when Congress created the office and went home. Randolph said no in that case. Since then, however, many presidents have taken the contrary position, and the D.C. Circuit's interpretation, as separation-of-powers scholar Peter Shane notes, "disregards about 190 years of contrary understanding by Congress and the Executive." University of San Diego law professor Michael Rappaport, a scholar of the original meaning of the clause, agrees with the D.C. Circuit: "I do think that on originalist grounds that the vacancy must come into existence during the recess. And I don't think that the Senate gets to acquiesce in a departure -- the Constitution clearly requires the Senate to advise and consent as to principal officers."

Richard Cordray, the head of the Consumer Financial Protection Bureau, was put in place by "recess appointment" in January 2012 as well. Republican Senate Leader Mitch McConnell has already announced that Cordray and the CFPB are in the crosshairs after the decision in Canning. Because it clashes with a decision of the 11th Circuit Court of Appeals, the issue may make its way to the Supreme Court, but such a decision could be rendered no sooner than 2014 at the earliest.

Under filibuster "reform" as announced Thursday, the minority will still be able to filibuster executive-branch nominees. Once Democrats muster 60 votes to proceed on a nomination, there will be a shorter delay before a vote. There's no change, though, in the minority's power to stall judicial nominations. And that brings the two decisions together.

Republicans find the D.C. Circuit a very friendly playing field these days. It has five active judges appointed by Republicans, three active judges appointed by Bill Clinton, and no judge appointed by Barack Obama. That's true even though there are three vacancies. No Obama appointee has made it onto the bench.

Filibuster, y'know.

This article available online at:

http://www.theatlantic.com/politics/archive/2013/01/democrats-reap-the-fruits-of-filibuster-fecklessness-at-the-dc-circuit-court/272545/