The U.S. Court of Appeals for the D.C. Circuit recently sent shockwaves through the federal government by ruling that President Obama exceeded his power under Article II of the Constitution to appoint executive branch officials when the Senate is in recess. Ruling on the appointment of three National Labor Relations Board members, the D.C. Circuit held that the president’s power is limited to the formal breaks in between congressional sessions and may not be used during shorter Senate recesses. That narrow interpretation of the President’s power to make recess appointments invites some reflection on Supreme Court history.

There have been twelve recess appointments to the Court throughout its history, according to a Congressional Research Service study. But it appears that none of them would obviously suffer from the constitutional flaw that the D.C. Circuit identified. Still, it is interesting to contemplate what the consequences could have been for the Supreme Court when President Eisenhower made the last three recess appointments to the Court in the 1950s.

Some background is in order to understand why the recess appointments issue is important to all students of constitutional law, of government structure and function, and of the regulatory process.

Article II, Section 2 of the Constitution gives the President the power to nominate and the Senate the power to confirm individuals to hundreds of top federal jobs, from cabinet secretaries and senior department officials to ambassadors to Supreme Court Justices to commissioners of the many federal regulatory agencies.

The Constitution also gives the President unilateral power to fill vacancies that occur when the Senate is in recess. Those “recess appointments” expire at the end of the next Senate session, but the President may submit the nominations for approval when the Senate returns to work.

The problem is in deciding what the Constitution means by “recess.” For much of our history, Congress met in short sessions and then recessed for many months at a time. Presidents used the recess appointment power to fill vacancies during those long congressional breaks between sessions. But in recent years, presidents have instead used recess appointments to fill vacancies when the Senate has dragged its feet, leaving positions open for long periods of time.  And rather than limiting them to formal “recesses,” they have made these appointments during short congressional breaks. For its part, the Senate has held “pro forma” sessions to try to ensure that the breaks are too short to qualify as recesses:  in these sessions, a lawmaker comes into the chamber, gavels the session open, and then leaves. Or the House of Representatives has exercised its somewhat obscure constitutional power to keep the Senate from adjourning for more than a day or two.

Three appointments by President Obama were at the center of the D.C. Circuit ruling. President Obama filled three vacancies on the National Labor Relations Board (NLRB) by making recess appointments on January 4, 2012, one day after Congress convened briefly as required by federal law. A Pepsi-Cola bottling company with a labor dispute before the NLRB challenged the Board’s action, arguing that the NLRB’s order in favor of the union was invalid because three of the five members were appointed in violation of the Constitution and thus the Board lacked a quorum.

On January 25, a three-judge panel of the D.C. Circuit ruled that the recess appointments to the NLRB were unconstitutional. The court held that the Constitution allows the president to make recess appointments only during the more formal breaks that may occur between the sessions of a Congress, typically at the end of the calendar year. The ruling would eliminate the President’s ability to fill vacancies during Congress’s long summer break or during other shorter recesses. Two of the three D.C. Circuit judges also ruled that the President may only use a recess appointment to fill a vacancy that actually occurs during the same recess – an interpretation that would narrow the recess appointment power even more.

But while the ruling, if allowed to stand, would drastically shrink the recess appointment power, the ruling would likely have made little difference in the course of Supreme Court history.

The twelve recess appointments to the Court all appear to have taken place during genuine breaks when the Senate was in a prolonged hiatus between sessions. Moreover, all but one nominee were subsequently nominated by the president and confirmed by the Senate. Only Chief Justice John Rutledge, given a recess appointment by President George Washington in July 1795, was subsequently rejected by the Senate in December 1795.

Even if virtually all recess appointments to the Court would pass muster under the D.C. Circuit’s definition of what constitutes a “recess,” however, some argue that there is a constitutional problem with all recess appointments of Justices and federal judges because they are supposed to be guaranteed life tenure under Article III of the Constitution. A recess appointment by definition is for a limited term, not life tenure.

What would it mean if the most recent recess appointments to the Court were of dubious validity? First, consider Chief Justice Earl Warren. He was appointed by President Eisenhower on October 5, 1953, one month after the sudden death of Chief Justice Fred Vinson. Vinson died a month after the Senate had adjourned for the year, concluding the first session of the Eighty-Third Congress.  Warren was formally nominated on January 11, 1954 and confirmed by the Senate on March 1, 1954.

As a recess appointee, Warren wrote and issued two Supreme Court rulings, one upholding a federal fraud conviction and the other deciding a longshoreman’s case. In neither of these cases did Warren cast what might be considered the deciding vote, nor did he serve as the swing vote in other decisions that the Court issued before he was confirmed by the Senate. But his role in persuading the Justices to rule that school segregation was unconstitutional is legendary, and the argument in Brown v. Board of Education took place in December 1953, while Warren was still a temporary Justice.

Next up was Justice William J. Brennan, Jr., who received a recess appointment from President Eisenhower on October 15, 1956. Brennan replaced Justice Sherman Minton, who announced on September 7 that he would retire on October 15. Both Minton’s announcement and effective retirement date took place after the Senate had adjourned for 1956 and ended the Eighty-Fourth Congress. Brennan was nominated by President Eisenhower on January 14, 1957, and he was approved by the Senate on March 19, 1957. In between the recess appointment and his confirmation, voters reelected Eisenhower to a second term as president. What would have happened to Brennan if Eisenhower were not reelected?  Instead of buying a place to live in Washington, Brennan initially opted to rent – just in case.

During Brennan’s recess tenure, he wrote and issued three decisions for the Court, two decided by six-to-three votes and one by an eight-to-one vote. Although Brennan voted in many cases during his temporary tenure, it appears that he was not the deciding vote in any opinions that were released during that period. His published opinions involved liability for railroads to injured workers and a tax dispute. It was not until after he was confirmed by the Senate that he issued his most important opinions of his first Term, defining obscenity standards in Roth v. United States, and giving defendants access to law enforcement reports in Jencks v. United States.

The most recent recess appointment to the Supreme Court was Justice Potter Stewart, also appointed by President Eisenhower, on October 14, 1958. He was nominated on January 17, 1959 and confirmed on May 5, 1959. So in his case, nearly an entire Supreme Court Term elapsed before he was finally approved by the Senate. Stewart’s appointment raises a more interesting question under the standard set by the D.C. Circuit. Justice Harold Burton, according to his own diary, visited President Eisenhower to tell him of his desire to retire in July 1957, when the Senate was still in session and had not yet adjourned the Eighty-Fifth Congress. But according to published accounts, Eisenhower asked Burton not to announce his plans until the President was ready to select his nominee. Burton did not actually resign until the Senate was in recess, but the White House knew of the vacancy while the Senate was in session.

Stewart’s role as a temporary Justice is far more extensive than Warren or Brennan. As a recess appointee, Stewart wrote and issued six opinions for the Court. Two were unanimous, but his vote as a recess appointee was decisive in four of those decisions, each of which was decided by a vote of five to four.  Stewart also provided the deciding vote – but did not write the decisions – in two other cases during that period. The five-to-four decisions written by Stewart involved a range of issues, from labor law to contempt standards to what law should be used in cases of injuries on ships.

Why have there been no recess appointments to the Supreme Court since 1958 and under ten Presidents after Eisenhower? In 1960, the Senate narrowly passed an influential, although non-binding, resolution declaring that recess appointments to the Supreme Court “may not be wholly consistent with the best interests of the Supreme Court” or of the nominees, litigants or the American people.

Because there have been no recess appointments to the Court in more than fifty years, no one is suggesting that we roll back the clock and reopen cases decided long ago.  And in any event, the recess appointments to the Court largely seem to fit within the parameters set by the D.C. Circuit ruling. But reopening decisions is precisely what lies ahead for the NLRB and some other federal agencies if the D.C. Circuit decision stands. Questions have also been raised about decisions by lower federal court judges who received recess appointments more recently than 1958.  All of these issues could be before the Court in the not-too-distant future.

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Recess appointments and the Court, SCOTUSblog (Feb. 15, 2013, 3:30 PM), http://www.scotusblog.com/2013/02/scotus-for-law-students-sponsored-by-bloomberg-law-recess-appointments-and-the-court/