class actions, disabled rights, copyright, attorneys general, online speech, law schools, obesity, New York, mortgages, legal blogs, safety, CPSC, pharmaceuticals, patent trolls, ADA filing mills, international human rights, humor, hate speech, illegal drugs, immigration law, cellphones, international law, real estate, bar associations, Environmental Protection Agency, First Amendment, insurance fraud, slip and fall, smoking bans, emergency medicine, regulation and its reform, dramshop statutes, hotels, web accessibility, United Nations, Alien Tort Claims Act, lobbyists, pools, school discipline, Voting Rights Act, legal services programs


If the Professor insists...

January 26, 2012 8:25 AM

Andrew M. Grossman
Heritage Foundation Visiting Legal Fellow

The Constitution is the operating manual for a political machine, a federal government. Why, then, should we be surprised when the answer to some really hard question is to let politics run its course?

I'd say we shouldn't, because the Constitution leaves most things to politics, and that's true for Prof. Mazzone's insistent hypothetical. To recapitulate: Congress is out of town, terrorists kill the federal officials who would have led our response to a terror attack, and the Senate is holding pro-forma sessions to block nominations. Whatever does the President do?

To Prof. Mazzone, this conundrum proves that the President can declare that Congress is out of session--no matter what Congress thinks of the matter--and make whatever appointments he wants.

Well, I offered one out to Prof. Mazzone, but he didn't bite. Article II provides that, if the two chambers of Congress can't agree on when to adjourn--as happened in December and this month--the President can "adjourn them to such time as he shall think proper." Doesn't this power directly answer Prof. Mazzone's hypo? (Let's put aside, for the moment the question of whether an "adjournment appointment" is just as good as a "recess appointment.") The only problem is the President would have to accept the political cost, but he has no constitutional right to avoid that.

But let's tweak the hypo a bit. Maybe the House and Senate are politically aligned against the President, so there's no disagreement on adjournment. Or let's say the Supreme Court ruled just last week that "recess appointments" can't be made during adjournments (i.e., within sessions) but only during recesses (between sessions). We're doomed, right?

I wouldn't see why. Isn't the obvious answer either that (1) Congress would vote to recess immediately so the President could do what needs to be done or (2) the Senate would stream back to Washington to confirm the President's nominees so quickly they'd get whiplash?

It's silly to assume that it would be otherwise, but it's even sillier to use that mistaken assumption to justify putting a thumb on the scale of constitutional interpretation, where the President gets to override all because, well, one day his political opponents would block him from doing very important things. Congress could hobble our national security just as well--if not better!--by denying appropriations for defense, deauthorizing the national security programs, and even sending home the troops. Defunding might only take half of the House or a third of the Senate, while the others might require a two-thirds vote to override the inevitable veto. But if you've got two-thirds on your side, why not go ahead and impeach the President?

So if I understand Prof. Mazzone's "commander-in-chief canon" of construction correctly, this means that, notwithstanding the text of the Constitution, the President gets to make appropriations (remarkably, President Obama toyed with the idea of claiming this power to himself, albeit for very important reasons other than national security), authorize federal activities, muster an army and a navy, and ignore his own impeachment--all because Congress otherwise might prevent him, one day, from responding to a terrorist attack.

One plus is that this canon is really easy to apply--much easier than trying to unravel original meaning!--but it also transforms our federal government into precisely what it was not meant to be: a monarchy.

Of course, I don't really think that's what Prof. Mazzone was getting at. But the point is that he isn't applying a workable neutral principle of constitutional interpretation.

So I will: interpret the constitutional text as it was originally understood, with an eye to structure and purpose. In this view, there's no real indication that the Recess Appointments Clause was intended at all as a means for the President to check Congress's power but was just a gap-filler, an answer to the question of how the President might make an appointment when Congress was gone for months on end. This was a specific and narrow exception to the general rule that the Senate gets to vote on the President's nominees.

This doesn't mean that the President is powerless to act in times of emergency and senatorial intransigence. He has an extremely powerful check over the Senate: a political check. That, in some instance, the President may not wish to spend his political capital on getting his nominees confirmed is no good reason to turn the constitution on its head.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.