I haven’t written much about politics lately, because these days I find most of it quite boring. There’s too much talk about how stupid and wicked conservatives are, or liberals, or whomever someone is righteously angry at. Also because I often write too much, so each post consumes a stupidly wasteful amount of time. But I am interested still in the non-partisan issues, the issues that are not ideological, but institutional. And so I was both fascinated and positively thrilled by the D.C. Circuit Court decision striking down President Obama’s recess appointments as unconstitutional.
The Recess Appointments Battle
For those who haven’t been watching the game, here’s a quick recap. In recent years the use of filibusters to block Senate approval of presidential appointments has grown exponentially. The purpose of Senate approval is to act as a check on the President, to keep him to good behavior and reasonably good judgement in making executive branch appointments. But increasingly it is used by the Senate minority simply to try to block presidential action at all, not to ensure the quality and integrity of the executive branch, but to cripple its capacity for the current officeholder. Both parties play the game, although Republicans do so more aggressively. It’s a sort of iterated prisoner’s dilemma: collectively they’d be better off if they could get in a cycle of cooperation (each side agreeing not to use filibusters as a normal tactic for blocking nominations), but having slipped into a cycle of defection, they’re in a suboptimal equilibrium where neither side has any incentive to unilaterally shift to cooperative behavior. Often, an action external to the formal structure of the game is required to change this equilibrium, whether side payments (if you stop defecting, we’ll give you some policy that’s important to you) or some outside arbiter changing the rules (changing the payoff structure, and so making it a different game, no longer a prisoner’s dilemma). The latter is what the Third Circuit did, but I’ll come back to that.
In response, presidents have resorted to greater use of recess appointments, appointments made while Congress is not in session. Recess appointments are good only to the end of the legislative session, but given that 1) most appointees serve two years or less anyway, and 2) any who might serve longer could just be re-appointed during the next recess, that end-of-session restriction isn’t particularly meaningful. Again, presidents of both parties have done this. But Obama, in response to the escalation of Senate minority use of appointment filibusters, has escalated his use of recess appointments. He has deliberately withheld making appointments until a recess–an anticipatory response to the Senate minority strategy–but he has also claimed unilateral authority to determine when Congress was in recess. Instead of the traditional understanding that “recess” meant the time between sessions of Congress (post-election, prior to convening of the new Congress) or at least when adjournments were formally declared by Congress (the original purpose of the recess appointments clause, of course, was that Congress was not always in session, and so it would not always possible for a president to get senatorial approval when a vacancy arose and an appointment was crucially needed, e.g., for a Secretary of State or Treasury), Obama has deemed any break in proceedings a recess, and has gone so far as to claim Congress is in recess in cases where most of Congress is out of town but the Senate is holding purely pro forma sessions for the explicit purpose of demonstrating that they are not in fact in recess.
The President seems to have adopted a “substantive recess” rule, which is a dangerous gambit for our system of separation of powers. Article II section 3 of the Constitution authorizes the president to
on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to time of adjournment, he may adjourn them to such time as he shall think it proper;
The President’s actions fall outside the scope of that clause. Article 1, section 5, paragraph 4 of the Constitution says that
Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days…
The Senate’s pro forma sessions were designed to convene every three days, to satisfy these rules. That was necessary because the Republican majority House withheld its consent to the Senate adjourning for more than three days, in order to prevent true adjournment–in order to deny the president the opportunity to make recess appointments (the House Republicans here were helping out the Senate Republicans, even though the House has no authority over appointments).
Of course the Senate meetings were strictly ritualistic. No business was conducted; they would convene (well, a very very few of them), announce there was no business, and close. But formally, these meetings mean the House and Senate were not in disagreement about time of adjournment. The Senate could have challenged the House on the time of adjournment and given the President the opportunity to set a date for adjournment and reconvening, but the Senate was formally complying with the House on times of adjournment, and with both chambers in formal agreement on adjournment, the president is devoid of authority to declare them in adjournment.
The Threat to Checks and Balances
The implications are very serious. If the president can declare Congress adjourned when both chambers agree they are not adjourned, the power is not inherently limited to case of merely formal agreement. A president could de facto declare a state of emergency with congressionally unchecked executive authority simply by declaring Congress in adjournment until such time as he chooses. And the Constitution, in an oversight, does not specify any time frame by which the President must have them reconvene, because in normal circumstances of adjournment if Congress chose to meet before the time the president had set for reconvening Congress would simply reconvene on its own authority, but imagine a president who has the unilateral authority to declare them in adjournment and was determined to do so repeatedly.
Obviously Obama has no interest in doing any such thing. Nor is the next president likely to have such an interest. But it is foolish to embed such latent power in the institution, because we don’t know what a future president is likely to do. Obama doesn’t seem like a monster, yet he has claimed the authority to execute American citizens without benefit of due process, and, with the state’s secret privilege, the unilateral authority to determine if a person can be denied their day in Court because of threats to classified information. Both of these were once outside the understandings of any president as to their scope of authority. Now they are embedded in the institution, probably permanently.
Fortunately the District Court ruled that the recess clause was in fact about “the” recess–the formal one between sessions of Congress–not about “a” recess. This eliminates the presidential claim of authority to determine when the Senate is in recess for the purpose of making recess appointments, and–incidentally, but of most importance–the president’s authority to unilaterally adjourn Congress.
I am less certain about the Court’s ruling that the vacancies must have come into being during “the” recess, rather than just happening to be vacant during that time, but a textual interpretation seems to support their argument, as Article II, section 2, paragraph 3 reads,
The president shall have power to fill up all vacancies that occur during the recess of the senate… (emphasis added).
“Occur” seems pretty unequivocal to me.
This decision is likely to stick if challenged. The D.C. Circuit is rather special, being more directly in tune with, and carrying more influence with, the Supreme Court than any other circuit. It’s not never reversed, but its reversals are much less common than for most other circuits.
The Need for Filibuster Reform
Practically what this means for the President and his party in the Senate is that Senate Democrats need to get serious about reforming the filibuster immediately, or the President will be hamstrung by Senate Republicans on appointments until December of 2014, when Congress is in “the” recess again. Because this is a problem the Senate created for itself by adopting new filibuster rules that nearly every thinking person now recognizes are a colossal blunder.
Once upon a time the Senate had truly unlimited debate. A senator could speak for as long as he wanted and there was no mechanism for shutting him off. In 1917 the Senate adopted the cloture rule, enabling debate on an issue to be closed, and the issue moved to a final vote on passage, by a 2/3 majority. Two-thirds proved to be practically impossible to achieve, so in 1975 the requirement was lowered to a 3/5 majority (currently 60 votes, until we add another state and two more senators).
But the crucial rules change came in 1971. Prior to that the Senate had a rule that only one item of business at a time could be up for consideration, so a filibuster on a bill blocked consideration of any other legislation until cloture was achieved or the bill’s sponsors (or majority leadership) gave up and pulled the item from consideration so the Senate could move on to other business. Frustration with the blocking of legislation resulted in a rule change that the Senate could move on other legislation while an item was subject to filibuster. This meant senators no longer had to actually stand at the podium and talk–what is now called the “talking” filibuster. All they had to do was notify the majority leadership that they were going to filibuster a bill, and the leadership would hold the bill off from consideration unless and until they could round up enough votes for cloture.
A well-intentioned rule change, but it had a fatal flaw: it eliminated the cost to the filibusterer. Simple marginal analysis rules the day here–make something less costly and you increase the demand for it. And filibusters grew and grew in number because all it took was a phone call, instead of real sustained committed effort–what is called the “silent” filibuster. It also took them out of the public eye, so senators didn’t have to think about public perception and electoral repercussions. The problem became evident early on–in the next session of Congress after the rule change there was a record number of filibusters–but only after several decades, i.e., now, did it become a non-stop tactic used to try to stop any and all presidential action.
The Senate did respond to the Circuit Court ruling by amending the rules last week, but the changes just nibble around the edges of the problem without addressing it directly. Explaining the changes briefly but clearly is difficult, so I’ll resort to just quoting The Hill.
The enacted reforms do not include the implementation of the talking filibuster, which would require senators seeking to block legislation to actively hold the floor and debate. If debate stops, the pending matter moves to a simple majority vote, under this proposal.
Nor does it shift the burden of sustaining a filibuster onto the minority party by requiring senators to muster 41 votes to continue blocking legislation. Now the burden is on the majority to round up 60 votes to overcome a filibuster….
Instead, the reforms will speed up efforts by the majority leader to move to begin debates on new business and confirm sub-Cabinet executive-branch and district-court judicial nominees, which passed on a 78-16 vote. The reforms also make it easier to send legislation to conference with the House — that rule was changed on a 86-9 vote. It will also require senators to appear on the Senate floor in person to block a bill or nominee and actually debate if they want to prolong consideration of business after the Senate has voted to move on.
The centerpiece of the deal would empower the majority leader to prohibit filibusters on motions to proceed to new business if he allows the minority leader and the minority bill manager each an opportunity to vote on an amendment
If anything, this deal makes filibusters even less costly. The requirement to appear on the floor if you want to keep debate going is meaningless. Normally filibusterers don’t care about keeping the debate going; they care about preventing a vote. If they can prevent the vote without having any on-going debate, it’s just that much less trouble for them.
The talking filibuster, despite its cost in obstructed legislation, is the only alternative. Frankly, the silent filibuster has created a huge cost in obstructed Senate activity, too, so the obstruction cost is not an argument in favor of it. The Senate needs to make filibusters expensive. Note that I’m not opposed to the filibuster. I don’t buy the argument that it’s undemocratic, because that’s a simplistic majoritarianism understanding of democracy, whereas I believe in a robust debate understanding of democracy. And the silent filibuster is clearly not encouraging debate in any way at all.
Allow senators to be obstructionists, by all means, because it is a valuable democratic tool, to say “slow down and listen to me before you act.” But it’s not an appropriate tool for all occasions, and it shouldn’t be cheap. Make them pay for their obstructionism. Make them hold the floor, and ask them if they’re really willing to stop all Senate business for this particular item. Make a public stink about the items on the agenda that Senator X is obstructing, and see if he/she and his/her party colleagues are really willing to stand before the American public and take that heat. If they are, it’s likely an item that’s legitimately worth fighting over, but if it’s not, they’re probably not really willing to pay the price for the fight. So the last change the Senate should be making is to further reduce their price.
This failed opportunity, and this misguided change–which gives Senate Democrats a very short-term payoff in approving some appointments–will add to Senate Majority Leader Harry Reid’s dismal legacy of inept and short-sighted leadership. The man literally can do nothing right except choose his electoral opponents well.