Some legal experts, including those who have sided with President Obama on other constitutional issues, think there is a good chance the courts could overturn his recent recess appointments.
Legal experts said courts could invalidate Obama’s appointments to the Consumer Financial Protection Bureau (CFPB) and National Labor Relations Board (NLRB) because there is scant precedent on the issue.
“It’s untested ground. If I were a judge, I could write out an opinion either way. There’s no clear precedent,” said Charles Fried, a constitutional expert at Harvard Law School who served as solicitor general under former President Reagan.
The Justice Department has argued that the pro forma sessions the Senate has held since Dec. 17 do not constitute genuine sessions of work and that the upper chamber has been, for all practical purposes, on vacation.
But Fried, who has sided with the Obama administration on challenges to the constitutionality of healthcare reform, said courts might not be willing to judge what qualifies as working sessions of the Senate, especially considering how much time the chamber spends on quorum calls lately.
“A court might very well say that we don’t want to start saying something the Senate calls a session is not a real session because not a lot of senators are around,” Fried said. “One might say that this whole year is one which is not a real session.”
Fried added that it is well-established that the president has power to make recess appointments, but it is not clear at all whether the two-day gap between pro forma sessions counts as a real recess.
Business groups can point to an amicus brief the late Sen. Edward Kennedy (D-Mass.) filed with the 11th U.S. Circuit Court of Appeals in 2004 challenging then-President George W. Bush’s recess appointment of Judge William Pryor Jr. to that court.
Kennedy argued that a 10-day recess the Senate took for Presidents Day did not amount to a constitutionally valid recess that would allow Bush to make a recess court appointment.
“The appointment of Judge Pryor is unconstitutional. An intra-session adjournment is not ‘the Recess’ to which the Recess Appointments Clause refers,” Kennedy wrote.
Last week, three business groups — the National Right to Work Foundation (NRWF), Coalition for a Democratic Workplace and the National Federation of Independent Business — filed a legal action challenging Obama’s recess appointments to the NLRB.
Legal experts said challenges filed in response to new regulations are likely to be more viable in court than Friday’s motion from the NRWF, which challenges the appointments based on ongoing litigation against a previous regulatory action.
The U.S. Chamber of Commerce said it had no plans to sue immediately but would wait until the CFPB and the NLRB issued their first regulations with the new appointees in place.
Carl Tobias, a professor at the University of Richmond School of Law, said waiting until Cordray or the new NLRB appointees act would make for “a much stronger case than the one they moved last week.”
“I don’t think the substitution of new labor board members vitiates the earlier action,” Tobias said. “If there’s fresh regulation adopted by Cordray as director, there’s a plausible argument that he doesn’t have the authority.”
A spokesman for House Speaker John Boehner (R-Ohio) said the House is mulling whether to pursue legal action against Cordray and the other appointees.
“We’re examining our options,” said Michael Steel.
Boehner said earlier this month that he expects courts to invalidate the president’s move.
“This action goes beyond the president’s authority, and I expect the courts will find the appointment to be illegitimate,” he said in a statement.
Richard Painter, a corporate law professor at the University of Minnesota who served in the White House Counsel’s Office under Bush, warned that if courts overturn the Cordray or NLRB appointments, the regulations they promulgated would be in legal jeopardy as well. He said the courts must rule quickly to avoid creating a regulatory snarl.
“That would create a lot of problems, a real mess,” he said. “If a court is going to deal with this, they need to deal with it very quickly. They can’t sit around and let this be litigated for five or six months. This needs to be dealt with.”
Painter, who sided with Obama in saying that the Senate should not filibuster the president’s nominees, said this legal matter revolves around very technical questions of what is a genuine Senate session or recess.
The problem with the courts overruling the Senate on the definition of a session is that it could become a slippery slope made all the more steep by the little time the chamber spends in debate or holding votes even when all 100 members are in town.
“If they’re not in session unless they’re doing something productive, then they’re usually out of session,” Painter said.
Some legal experts, however, disagree with the slippery-slope argument.
“I would say that shams and gimmicks often rely on misunderstandings of the law,” said Victor K. Williams, a clinical assistant professor at the Catholic University of America School of Law who argues that pro forma sessions are sham sessions of Congress, a view shared by the administration.
He said most Americans who follow political wrangling over recess appointments know that such sessions are not intended to accomplish work.
The Justice Department’s Office of Legal Counsel argued in a memo made public last week that pro forma sessions should not be recognized as working sessions of the Senate.
Not counting these short, ceremonial sessions, the Senate would be in recess from Dec. 17 to Jan. 23, easily long enough for the president to justify making recess appointments.
Republicans insisted on holding nine pro forma sessions during that period for the purpose of blocking recess appointments, and Democrats agreed to schedule them.
Virginia Seitz, assistant attorney general for the Office of Legal Counsel, argued that pro forma sessions held every third day do not render the Senate a functioning body that can provide advice and consent on the president’s nominees.
“Although the Senate will have held pro forma sessions regularly from Jan. 3 to Jan. 23, in our judgment, those sessions do no interrupt the intra-session recess in a manner that would preclude the president from determining that the Senate remains unavailable throughout to ‘receive communications from the president or participate as a body in making appointments,’” Seitz wrote in the Jan. 6 memo.
Seitz noted that pro forma sessions typically last only a few seconds and require the presence of only one senator.
Jonathan Adler, a law professor at Case Western Reserve University, said DOJ’s argument that pro forma sessions are not working sessions has come under scrutiny, noting that the two-month extension of the payroll-tax holiday was approved in pro forma session.
He said it’s “kind of a hard argument” that pro forma sessions count to fulfill the constitutional requirement that Congress convene on Jan. 3 of each year and “for passing genuine legislation, but don’t count for recesses.”