[Editor's Note: The following piece is the second in a four-part dialogue between Tillman and Kalt. Tillman's opening piece can be found here, Tillman's reply to this response can be found here, and Kalt's final rejoinder can be found here.]
The federal appointment process has degenerated in recent decades. As the Senate has become more comfortable ignoring nominations instead of rejecting them, Presidents have become more comfortable pushing their recess-appointment powers to their fullest extent—and perhaps beyond.[1] In his piece on the Recess Appointments Clause, Seth Barrett Tillman offers a clever way for the Senate to respond, which I will call the "Tillman adjournment."[2] This response suggests some reasons why the Senate is unlikely to try a Tillman adjournment. In brief, the tactic suffers from both constitutional problems and even deeper practical problems.
I. Introduction
The Recess Appointments Clause states 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."[3] In the first century of the Republic, the Senate was in recess most of the time.[4] By allowing the President to fill critical vacancies unilaterally but temporarily, the Recess Appointments Clause allowed the Senate to stay home without the executive branch crumbling, but also without giving the President too much unchecked power.[5]
Times have changed. The Senate spends relatively little time in recess now, so comparatively few vacancies arise during recesses, and most of those vacancies could wait to be filled until the Senate returns. Even though the original purpose of the Clause is thus largely moot, the Clause's broad language allows Presidents to use it for another purpose: as a bludgeon rather than a bandage. Imagine that the President has nominated someone who will not get confirmed, but also will not get an up-or-down vote. The irked President waits until the Senate takes a couple of weeks off, and installs the nominee with a recess appointment. The appointee serves, the Senate is angry that the appointee is in office, the President is grumpy that the appointee is a short-term lame duck, and the ill will feeds on itself.
Tillman suggests that, because recess appointments expire at the end of the "next session," the Senate can toss a recess appointee out of office simply by ending its session early.[6] If the President appoints someone between sessions, the Senate can come back to its "next session" and end it a moment later. A moment after that, the Senate can open another new session and go about its business none the worse for wear. If the President instead appoints someone during an intra-session recess, the Senate can just lower the gavel twice when it comes back: once to end the first session, and then again to end the "next session." Either way, Tillman says, the Senate can send the recess appointee packing.
There are three reasons why the "Tillman adjournment" is not viable. First, by involving the House of Representatives in the appointment process, a Tillman adjournment would be a constitutional impropriety, a violation of the clear structure and intent (if not the letter) of the Constitution. Second, the President could easily nullify the Senate's action, making Tillman adjournments pointless at best, and needlessly provocative at worst. Third, the Senate has other tools at its disposal that avoid these practical and constitutional problems.
II. Constitutional Concerns
Tillman argues that "[a]s a textual matter it appears that the decision [of when the session ends] is one for the Senate alone to make."[7] This is wrong—the Senate cannot unilaterally end a congressional session. The Constitution provides, and uniform historical practice confirms, that a regular session ends when the Senate and House agree that it ends; if they cannot agree it falls to the President to adjourn them . . . or not.[8] Of course, the House and Senate can agree to all sorts of structures for adjournment—some terms of Congress have had three regular sessions rather than two, and some sessions have ended with one chamber adjourning weeks later than the first—as long as both chambers agree on that structure.[9]
Although he doubts it, Tillman admits the possibility that the House would need to sign off on a Tillman adjournment. He says that even if this is so, it would still "represent a sea-change in our current recess appointment practices."[10] He is more right than perhaps he realizes; entangling the House in the appointment process would be grossly inconsistent with the Constitution's clear structure. Put simply, appointments are supposed to be a matter for the President and the Senate to work out, and the House should have no role.
That said, if the Senate could get the House to agree to a Tillman adjournment, the session would indeed end, and the President's existing recess appointments would indeed expire. The action would not be unconstitutional as such. However, it surely would be—to use Stephen Carter's term—a "constitutional impropriety": something that no court could strike down, but which is nevertheless inconsistent with the Constitution, and which any member of the House who takes his oath seriously should avoid doing.[11]
III. Political Ramifications
Tillman also argues that "the President simply plays no role (or next to no role) in decision-making involving the Senate's decision to recess and to reconvene."[12] Just as he oversold the Senate's power above, he undersells the President's power here. Not only can the President convene special sessions of Congress, he can also convene a special one-chamber session.[13] Presidents have convened forty-six such special sessions, and in all forty-six cases, the one chamber they called was the Senate, usually to consider nominations. As a practical corollary to the President's unquestioned power to convene (and reconvene, and re-reconvene) the Senate, the Senate cannot functionally adjourn these special sessions if the President is not ready to allow it. Indeed, these special sessions traditionally ended only after the Senate formally asked the President whether he had any further business for it, and the President said no.[14]
Because of this constitutional structure, even though a Tillman adjournment could be done—constitutional improprieties notwithstanding—it would not work as a practical, political matter. No President would take such an unprecedented and aggressive action by the Senate lying down. As the Tillman adjournment ended his recess appointments, the President could simply take advantage of the adjournment to re-appoint all of them, sending things back to square one.
Constitutional shenanigans like this really do happen. In 1903, for example, a special session of Congress ran so long that it bumped up against the scheduled start of the regular session. On December 7, with the strike of the gavel, the special session ended and a regular session simultaneously began. In the infinitesimal—if that—separation between the two sessions, President Theodore Roosevelt made 160 recess appointments. Two of them were renewals of prior controversial recess appointments.[15]
Relatedly, a President could make a recess appointment and then convene a special session of the Senate, refusing to allow it to adjourn until the end of the term, thereby extending the recess appointment's tenure to its maximum. If the Senate tried to adjourn anyway, the President could re-recess-appoint everyone as described above, then reconvene the Senate again. Outside of impeachment, which is always on the table in any case, there would be nothing much that anyone could do about it.[16]
IV. Alternatives to the Tillman Adjournment
There are some things that the Senate can do—and does do—that would be more appropriate and effective in hemming in the President's ability to make recess appointments. While the Tillman adjournment is akin to bringing a knife to a gunfight, the Senate does have a small firearm or two in its arsenal.
First and foremost, instead of dashing forward to the constitutional brink, the Senate can take a step back and just do its job. Instead of letting controversial nominations last until a recess, teeing up controversial recess appointments, the Senate can just vote on them. Tillman praises his maneuver because it forces the Senate to act affirmatively against the President, but the solution to the recess-appointment problem is not more recesses; it is fewer vacancies. If the Senate has the votes to take an affirmative step, it should take the simpler and less problematic step of voting on the nominee when it can. If the Senate does not like a nominee, it can say so by rejecting him. Although a President technically might try to recess-appoint a rejected nominee anyway, there is a good argument to be made that this would be unconstitutional.[17] At the very least, it would mean that the President would be the one committing a constitutional impropriety.
A more subtle option is to use the power of the purse. It complicates the President's task if his recess appointees must work for free, and Congress has the power to make that happen. Current law, for instance, eliminates pay for recess appointees in cases where the President has arguably misused his appointment power, though it makes exceptions for cases in which the Senate has arguably misused its confirmation power.[18] If both sides are interested in strengthening the incentives for both sides to act properly—or if a veto-proof majority in Congress is interested in unilaterally strengthening the President's incentives to act properly—this law could be strengthened. While passing legislation like this would drag the House into the appointment struggle, it is proper for the House to be involved in questions of executive pay. Assuming that the new law applied generally and prospectively, it would not raise the same level of constitutional difficulty as House participation in a Tillman adjournment.
Beyond these two options, the Senate has other ways to assert itself, but these two examples should make the point adequately: the current conflict over appointments is neither inevitable nor intractable. The Senate has other, better options at its disposal than the Tillman adjournment.
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* Associate Professor, Michigan State University College of Law. Thanks to Jane Edwards and Brian Lick for their research assistance, and to Jorge E. Souss for his suggestions.
1. Two good accounts of the Recess Appointments Clause that critique presidential excesses are Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005) (link), and Michael A. Carrier, Note, When Is the Senate in Recess for Purposes of the Recess Appointments Clause?, 92 Mich. L. Rev. 2204 (1994).
2. Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 2007 Nw. U. L. Rev. Colloquy 2 (link). All quotations and citations of Tillman in the text refer to this piece unless otherwise noted.
3. U.S. Const. art. II, § 2, cl. 3 (link).
4. For a full accounting of congressional sessions and recesses from 1789 to 2003, see United States Senate, Sessions of Congress (2003), http://www.senate.gov/reference/resources/pdf/congresses2.pdf (link). Subsequent references to the history of sessions and recesses are supported by this document as well.
5. See The Federalist No. 67, at 329 (Alexander Hamilton) (Terence Ball ed., 2003) (link) ("[I]t would have been improper to oblige this body to be continually in session for the appointment of officers . . . .").
6. Tillman, supra note 2, at 2.
7. Id. at 4.
8. U.S. Const. art. II, § 3 (link) (giving the President power to decide on adjournment if House and Senate disagree on adjournment); see also id. at art. I, § 5, cl. 4 (link) (limiting one-house intra-session adjournments to three days or less); id. at art. I, § 7, cl. 3 (link) (placing "question[s] of adjournment" logically among things for which "the Concurrence of the Senate and House of Representatives may be necessary"); id. at amend. XX, § 2 (link) (giving "Congress" authority to determine by law when to convene).
9. See Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Reasoned, 83 Tex. L. Rev. 1265, 1346-47 (2005) (link) (discussing concurrent resolutions and ends of sessions).
10. Tillman, supra note 2, at 5.
11. Stephen L. Carter, Constitutional Improprieties: Reflections on Mistretta, Morrison, and Administrative Government, 57 U. Chi. L. Rev. 357, 358 (1990).
12. Tillman, supra note 2, at 4.
13. U.S. Const. art. II, § 3 (link) ("[H]e may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper . . . .").
14. To take the most extreme example, in the special session of 1867, the Senate rejected large numbers of Andrew Johnson's Democratic nominees and waited impatiently for him to nominate Republican ones. The House's first attempt to impeach Johnson was pending. Senators threatened to adjourn with the offices in question unfilled, as they technically had the power to do. Nevertheless, the Senate eventually cooled down and informed the President that it would adjourn at a particular time unless he had further business for them. In the end, the Senate adjourned only after Johnson indicated that he did not. See Cong. Globe, 40th Cong., Spec. Sess. 821-51 (1867) (link). For three earlier instances in which the Senate used the same approach, see 48 Journal of the Senate of the United States of America 393, 395, 397 (Washington, Nicholson 1856-57) [hereinafter Senate J.] (link); 44 id. at 363 (Washington, Armstrong 1852) (link); 42 id. at 295-96 (Washington, U.S. Senate 1850-51) (link).
More often (on twenty-nine occasions), the Senate used a more deferential formula: inquiring whether the President has further business for them, hearing that he does not, and then adjourning either immediately or after conducting internal business. See 55 Cong. Rec. 87, 95 (1917); 50 id. at 35 (1913); 44 id. at 8, 12 (1909); 40 id. at 33 (1905); 37 id. at 140 (1903); 100 Senate J. 284 (1901); 25 Cong. Rec. 112, 159-60, 180 (1893); 12 id. at 540 (1881); 12 id. at 471 (1881); 4 id. at 149 (1875); 1 id. at 205 (1873) (link); 57 Senate J. 355 (Washington, Government Printing Office 1864) (link); 55 id. at 455 (Washington, Government Printing Office 1863) (link); 52 id. at 433 (Washington, Bowman 1860-61) (link); 51 id. at 785 (Washington, Bowman 1859-60) (link); Cong. Globe, 36th Cong., 1st Spec. Sess. 1691-92 (1859) (link); 49 Senate J. 726 (Washington, Harris 1857-58) (link); Cong. Globe, 31st Cong., Spec. Sess. 355 (1849) (link); 36 Senate J. 286-87 (Washington, Gales & Seaton 1844) (link); Cong. Globe, 26th Cong., 2d Sess. 257 (1841) (link); 13 Reg. Deb. 1038 (1837) (link); 18 Senate J. 205 (Washington, Duff Green 1828) (link); 14 id. at 284-85 (Washington, Gales & Seaton 1824) (link); 30 Annals of Cong. 226 (1817) (link); 19 id. at 466 (1809) (link); 10 id. at 762-66 (1801) (link); 6 id. at 1586 (1797) (link); 4 id. at 868 (1795) (link); 2 id. at 1830 (1791) (link).
There are exceptions to this pattern, however. See 131 Senate J. 311 (1925) (performing the usual inquiry, the President notifying the Senate that he "would communicate later with the Senate in writing," and the Senate adjourning some time later); 21 Cong. Rec. 62, 67, 73 (1889) (performing the usual inquiry, the President notifying the Senate that "he will to-day communicate to the Senate certain messages, but after that no other messages will be communicated except of a formal character to fill vacancies as they arise," and the Senate adjourning after doing the requisite work); 17 id. at 97 (1885) (performing the usual inquiry, the President notifying the Senate that he "knew no reason why the Senate should not adjourn after disposing of the nominations already made," and the Senate adjourning after doing the requisite work); 6 id. at 40-41 (1877) (adjourning on Saturday after President replied to usual inquiry by saying that "he would probably not require the presence of the Senate longer than Saturday or possibly Tuesday next"); 7 Annals of Cong. 624 (1798) (link) (adjourning after the usual inquiry, the President notifying the Senate that he has one more nomination, and the Senate approving it); 3 id. at 668 (1793) (link) ("After acting upon several nominations received from the President, the Senate adjourned, sine die.").
On a few occasions, the record does not show that Senate observed the formal procedure at all. In the special sessions of 1869 and 1871, the Senate disregarded specific attempts to follow the usual procedure, but in a way that makes it fair to say that the issue was just lost in a shuffle of other matters. See Cong. Globe, 42d Cong., Spec. Sess. 930 (1871) (link) (attempt by Senator Harlan); id., 41st. Cong, Spec. Sess. 727 (1869) (link) (attempt by Senator Conkling). In two cases, the special session ended without the usual formality, but a special bicameral session convened very shortly thereafter. See 77 Cong. Rec. 36 (1933); 30 id. at 8 (1897). Finally, in three other cases, the Senate simply adjourned sine die without any evidence in the record of communication with the President. See 73 id. at 384 (1930); 71 id. at 15 (1929); 61 id. at 72 (1921).
15. See T.J. Halstead, Cong. Research Serv., Recess Appointments: A Legal Overview 10 (2005), available at http://fpc.state.gov/documents/organization/50801.pdf (link).
16. Indeed, when President Johnson was impeached, the struggle over convening and recessing the Senate discussed in note 14, supra, was not among the charges against him. See Cong. Globe, 40th Cong., 2nd Sess., Supp. 3-4 (1868) (link).
17. See, e.g., Staebler v. Carter, 464 F. Supp. 585, 601 n.41 (D.D.C. 1979) ("A President could probably not consistently with the principle of checks and balances grant a recess appointment to one rejected for the particular position by a vote of the Senate."). Without this limit, the Senate's power to reject nominees would be reduced to a near nullity, which at the very least is structurally problematic.
18. See 5 U.S.C. § 5503 (2000) (link). Section 5503 provides that recess appointees cannot be paid if the vacancy arose before the recess. There are three exceptions: if the vacancy arose less than 30 days before the end of a session; if the Senate rejected someone else for the job less than 30 days before the end of the session; or if the President nominated someone to fill the vacancy and the Senate did not act. The law appears to provide further that, even if one of these exceptions applies, the appointee will not get paid if the President fails to re-nominate him within forty days of when the Senate reconvenes.
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Copyright 2007 Northwestern University
Cite As: 101 Nw. U. L. Rev. Colloquy 88 (2007), http://www.law.northwestern.edu/lawreview/Colloquy/2007/3/.
Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2007/3/
(Comments)
Professor Kalt,
I came across this article you published in January while researching an upcoming essay for llrx.com.
In it, you call the recess appointment clause moot and its current use a “a bludgeon rather than a bandage” used when the President has “nominated someone who will not get confirmed, but also will not get an up-or-down vote.”
You suggest that “If the Senate has the votes to take an affirmative step, it should take the simpler and less problematic step of voting on the nominee when it can. If the Senate does not like a nominee, it can say so by rejecting him.”
George W. Bush seemed to concur in his "Remarks on the Recess Appointment of John Bolton as Ambassador to the United Nations August 1, 2005," found in The Weekly Compilation of Presidential Documents, citing the lack of an up or down vote after nearly five months: “The United States Senate held thorough confirmation hearings, and a majority of United States Senators agree that he is the right man for the job. Yet because of partisan delaying tactics by a handful of Senators, John was unfairly denied the up-or-down vote that he deserves.”
But in the case of the Fox nomination, on March 28, the White House withdrew this nomination. According to Sam Hananel of the Associated Press, in his article which ran that date in USA Today as, "White House withdraws ambassador nominee, " the announcemnt came “less than an hour before the Senate Foreign Relations Committee gathered to vote on his nomination.”
Chris Dodd (D-CT) issued a statement that, “It is outrageous that the President has sought to stealthily appoint Sam Fox to the position of ambassador to Belgium when the President formally requested that the Fox nomination be withdrawn from the Senate because it was facing certain defeat in the Foreign Relations Committee last week. I seriously question the legality of the President's use of the recess appointment authority in this instance. I intend to seek an opinion on the legality of this appointment from the Government Accountability Office (GAO) and invite other Senators to join with me in that request. This is underhanded and an abuse of Executive authority -- sadly this behavior has become the hallmark of this administration.”
John Kerry and Chris Dodd had strongly opposed the nomination. Chris Dodd, joined by Kerry and Bob Casey of Pennsylvania, sent a letter April 5 to David M. Walker, Comptroller General Government Accountability Office requesting “that the Government Accountability Office examine a particular aspect of the legality of the Bush Administration’s recent recess appointment… as… Under 5 U.S.C. § 5503, in order for Mr. Fox to be paid for his services as Ambassador, his nomination would have to have been pending before the Senate on March 29th, when the Senate went into recess. Moreover, according to a separate statute, 31 U.S.C. § 1342, the U.S. Government cannot accept “voluntary services” from individuals except in an emergency. … the position in question is a statutory entitlement with a fixed rate of pay that cannot be waived (Section 401 of the Foreign Service Act of 1980 mandates a fixed rate of pay for the position of Ambassador).
Dodd also has a petition on his presidential campaign page urging opposition to the appointment. "
In your article, you continued “Although a President technically might try to recess-appoint a rejected nominee anyway, there is a good argument to be made that this would be unconstitutional.”
For authority, you cite Staebler v. Carter, which found that "A President could probably not consistently with the principle of checks and balances grant a recess appointment to one rejected for the particular position by a vote of the Senate.
You add, “At the very least, it would mean that the President would be the one committing a constitutional impropriety.”
Although Bush did not try to recess-appoint a rejected nominee, he had withdrawn the nomination before he could be rejected and then appointed him. I'd be interested to know what you have to say about the Fox appointment and, I'm guessing, so would your other readers.
Thanks.
Posted by: Beth Wellington | April 14, 2007 at 04:12 AM
>>>I came across the article you published in January while researching an upcoming essay for llrx.com. In it, you call the recess appointment clause moot and its current use a “a bludgeon rather than a bandage” used when the President has “nominated someone who will not get confirmed, but also will not get an up-or-down vote.”
I don't think I said that the clause is moot. I would say only that the original intentions motivating the drafting of the Clause are moot. But the Clause is still there, and if you don't believe in strong originalism, the Clause still has effects.
>>>Chris Dodd (D-CT) issued a statement that, “It is outrageous that the President has sought to stealthily appoint Sam Fox to the position of ambassador to Belgium when the President formally requested that the Fox nomination be withdrawn from the Senate because it was facing certain defeat in the Foreign Relations Committee last week. I seriously question the legality of the President's use of the recess appointment authority in this instance. I intend to seek an opinion on the legality of this appointment from the Government Accountability Office (GAO) and invite other Senators to join with me in that request. This is underhanded and an abuse of Executive authority -- sadly this behavior has become the hallmark of this administration.”
While it is true that Fox probably would have lost in Committee, and (I believe) this would have prevented the nomination from going to the floor, there were a couple of Democratic senators who had said they supported the nomination. Therefore, the president's side could claim that if the nomination had gotten to the floor, it would have passed. So that complicates things a bit.
That said, everyone knew what the rules were, and not getting to the floor because the committee defeated it is certainly less problematic than not getting to the floor because of committee inaction. The President's action is pretty close to the line here--and I'm not sure which side of the line it is on.
There is a continuum here. Worst case--nominee gets defeated, President recess appoints. I personally think that is unconstitutional, but the case law is pretty weak on the question, and it could certainly go either way.
Next (less) worst case--nominee is going to get defeated, President withdraws and recess appoints.
Next worst case--nominee is going to get defeated, but Senate doesn't act in time, President recess appoints.
Next worse case--potential nominee would likely face serious opposition, President doesn't make the nomination until a recess.
Under current case law (which I don't like, because it allows recess appointments for vacancies that arose before the recess, and for brief recesses during the session), I would argue that the first two are unconstitutional and the last two are, at worst, constitutional improprieties. Of course, just because I think it is unconstitutional doesn't mean that it is, or that (more importantly) a court would be able to decide the issue.
>>>John Kerry and Chris Dodd had strongly opposed the nomination. Chris Dodd, joined by Kerry and Bob Casey of Pennsylvania, sent a letter April 5 to David M. Walker, Comptroller General Government Accountability Office requesting “that the Government Accountability Office examine a particular aspect of the legality of the Bush Administration’s recent recess appointment… as… Under 5 U.S.C. § 5503, in order for Mr. Fox to be paid for his services as Ambassador, his nomination would have to have been pending before the Senate on March 29th, when the Senate went into recess. Moreover, according to a separate statute, 31 U.S.C. § 1342, the U.S. Government cannot accept “voluntary services” from individuals except in an emergency. … the position in question is a statutory entitlement with a fixed rate of pay that cannot be waived (Section 401 of the Foreign Service Act of 1980 mandates a fixed rate of pay for the position of Ambassador).
Dodd also has a petition on his presidential campaign page urging opposition to the appointment. "
Section 1342, which I would have cited in my article had I been aware of it, certainly strengthens Senator Dodd's argument. But it only sharpens the question. It doesn't decide it, because the President can argue that the statute unconstitutionally infringes on his recess-appointment power (I don't think he can plausibly invoke the emergency exception here, given the relatively low profile of the post). The argument is stronger than you might think, for this reason: the statute might make appointments that are valid under the constitutional clause nevertheless illegal under the statute. Section 5503 could also affect my bottom two scenarios above, and it isn't clear that those appointments would violate the clause.
In this case, though, I think Senator Dodd has a pretty good argument. His problem is going to be getting into court to argue it; I doubt that he has standing to sue to enforce section 1342. I can't imagine anyone having standing to sue in this case, except perhaps for the official that Fox is displacing, who could sue for back pay if Fox's appointment deprives the official of any compensation. If not, though, the case just won't get decided. You can't go into court just to argue that the law has been violated; you have to have a particularized, individualized, concrete injury. Dodd almost certainly doesn't have one. A general interest in following the law is not enough to get into court. Dodd's remedies are political--the Senate can retaliate against other nominees, not go into recess, etc. At the extreme, impeachment looms, but I doubt that this would be enough to win over the number of GOP senators you'd need to win.
>>>In your article, you continued “Although a President technically might try to recess-appoint a rejected nominee anyway, there is a good argument to be made that this would be unconstitutional.”
For authority, you cite Staebler v. Carter, which found that "A President could probably not consistently with the principle of checks and balances grant a recess appointment to one rejected for the particular position by a vote of the Senate.
Staebler is an interesting case, but a weak precedent. The relevant language is in a footnote, and the case was pretty low-level.
>>>Although Bush did not try to recess-appoint a rejected nominee, he had withdrawn the nomination before he could be rejected and then appointed him. I'd be interested to know what you have to say about the Fox appointment and I'm guessing, so would the readers.
That's what I think. To sum up, it is probably unconstitutional, but it would be hard to get the courts to take the case. Even if they did take it, the President might win. There is an argument that his action is constitutionally OK, and the history of recess-appointment court decisions is a history of the court allowing things that, to most experts, they should not have.
Posted by: Brian Kalt | April 14, 2007 at 09:41 AM