Recess appointments: watch what you cite...

The continuing public debate over the constitutionality and propriety of President Obama's recess appointments last week is something that I think is quite healthy for a democracy. One of the few things we can say for certain about the issue is that the Constitution is vague on the matter, and therefore open to a variety of interpretations that are equally plausible. Don't listen to anyone to tries to convince you that this is a settled matter with a definitive answer. It's not. Ditto for anyone who tries to tell you that it's a prospectively easy court opinion to write; my inclination (against my normative wishes) is that the Obama recess appointments are constitutional, by one logic or another. But I think it's far from an open-and-shut case, and I can easily imagine an opinion to the contrary.

In my mind, all of this means that optimal political and legal adjudication of both the immediate matter of the Cordray et. al nominations, as well as the use of recess appointments in the future, requires a full and vigorous debate over the normative, constitutional, institutional, and political issues surrounding the current appointments. Although I don't think it's true of all political debates, this is one in which I think having more voices and more opinions is an unqualified benefit; and so i applaud the volume and diversity of writing that has sprung up on the topic in both the popular press and the blogsphere.

That said, one thing that is bothering my whig antennae is the deference that opinions of the Attorney General, as well as the Office of the Legal Counsel at the Justice Department, are receiving among commentators. Here's Lawrence Tribe, writing in the New York Times last Thursday:

Past practice also points the way. Presidents have long claimed, attorneys general have long affirmed and the Senate has long acquiesced to the president’s authority to make recess appointments during extended breaks within a Senate session [...] Since 1867, 12 presidents have made more than 285 such appointments, without constitutional objection by the Senate. And attorneys general going back to Harry M. Daugherty in 1921 have held that the Constitution authorizes such appointments.

Here's Stephen Bradbury and John Elwood, writing in the Washington Post:

In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question "is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word 'recess' a technical and not a practical construction, is to disregard substance for form."

Here's Tim Noah, pushing back against the 1921 Daugherty opinion:

The problem is that although Daugherty broadened the definition of the term "recess," he also affirmed ... that he didn't envision a recess lasting three days: "[A]n adjournment for five or even 10 days [cannot] be said to constitute the recess intended by the Constitution." Daugherty's caveat is also cited in [a] 1992 memoissued under Attorney General William P. Barr.

Here's John Yoo, arguing against the constitutionality:

In the past, attorneys general and presidents have thought that an adjournment would have to be longer than at least ten days to become a “recess.”

Here's Jonathan Bernstein, responding to Yoo on his blog:

As Yoo knows (since he refers to it in his article), the current three-day minimum standard is derived from a Clinton-era Justice Department opinion. Not the Senate. The Justice Department.

But here's the problem I see: none of these opinions of the Justice Department are in anyway binding on constitutional matters that affect the legislative branch as an institution (note that this is emphatically not the the case for constitutional questions strictly within the executive branch, where Justice Department opinions bind agencies absent court rulings otherwise). Bernstein very correctly points out that the Senate is not the sole arbiter of what constitutes a recess for the purposes of Article II of the Constitution. But by virtually identical logic, it should be obvious that the opinion of the Attorney General is hardly the last word either.

In fact, common sense tells us that the Justice Department is going to have a much strong pro-President opinion, on average, than any definitive Court ruling on the matter. The Attorney General works for the President! Even worse, most of the opinions and memorandums of the Justice Department rely strongly on previous opinions and memorandums of the Justice Department. It's not a stretch to say that many or most of these citations to Justice Department opinions are simply reiterating Justice Department precedent stemming from the 1921 Daugherty opinion. So while many commentators are presenting these opinions as a long and continuous cannon of rulings on the matter, it could just as easily be described as a series of self-serving executive branch precedents, stacked up on top of each other.

Now, there's nothing wrong with the opinions as arguments. They are certainly important documents to consider when thinking about the issues surrounding recess appointments, and many of them are both well-written and thoughtful. As a historical resource for guiding deliberations or informing us of past thinking, they are useful. But they cannot be mistaken for court decisions on the constitutionality of the current recess appointments. As they relate to the ultimate constitutionality of any given recess appointment, they are, at best, the foundation of the arguments that the executive branch would bring to court. And they should be treated as such: thoughtful opinions and memorandum, produced by the executive branch for use by the executive branch, with the full understanding that they were not written by, or for, the legislature.

But wait, you say, hasn't the Senate signed on to certain Attorney General opinions in the past or otherwise validated executive branch action, like int he 1905 Judiciary Committee Report on the TR appointments? To which I answer: sure. But the Senate can surely validate an action at one point in time and change it's mind at another. It would be striking indeed to come up with a theory of recess appointments in which Senate precedent --- which can be, and occasionally is, overturned by a bare majority of Senators --- was binding not only on a future Senate, but also on questions of the constitutional powers of that future Senate. At the very least, a contemporary Senate can actively disagree with its own past precedent, even if inaction was interpreted as an endorsement of the precedent (which itself is not inherently true.)

But wait, you say, aren't the terms of recess appointments, as pointed out by Noah and Akhil Amar, often negotiated by the Justice Department and the Senate? To which I say, again: sure. But while the Senate and President can come to agreements on recess appointments, nothing they do can violate or alter the Constitution, simply because they agree. Consider the legislative veto: numerous Presidents signed bills into law that put in place legislative vetos, but that did not alter their fundamentally unconstitutional character, as decided in Chada. Both the Senate and House agreed to the Line Item Veto Act in 1996, but that did not render it constitutional. The Senate cannot consent to violate the Constitution, even if that violation results in a disadvantage for the Senate. (Note that the Senate certainly can violate the constitution and choose not to attempt to enforce the constitution; but even in that case, any individual with standing could challenge the Senate's selfless actions as unconstitutional.)

But wait, you say, don't the federal courts rely on such opinions and memorandum when consider the constitutional questions involved? To which, I say, again: sure. But that still doesn't make them any more authoritative than a good law review article on the topic. And to the degree to which the Courts are deferential to an OLC opinion in an inter-branch dispute, I think that's an error. The existence of such Justice Department opinions is probably, at least in part, constitutive of any lawsuit that was filed against a recess appointment. That it would also become the reasoning for the court opinion on the matter would rest solely, in my mind, on the strength of its arguments, not the province of its origin.

And look, again, I'm not trying to say the Justice Department opinions and memos are worthless. Far from it. They are some of the best-informed legal writing we have on the subject, especially in the absence of a lot of competition or definitive court rulings. My point is that we shouldn't give them, on their own, as much weight as many commentators have been giving them this week. And I don't say this as a legislative branch patriot; the same logic would hold for opinions and memorandum of the Senate Legal Counsel (or House General Counsel, for matters in their purview). These are entities whose primary function and activities are to serve an individual branch of the government. In cases of inter-branch disputes, their opinions can be interesting, helpful, and ultimately persuasive. But we should not mistake them for controlling court decisions.