Recess Appointment For Scalia’s Replacement Might Work, Even if Illegal

Recess Appointment For Scalia’s Replacement Might Work, Even if Illegal

A Recess Appointment Might Work, Even if Illegal
Law is Far From Clear; “Office Holder in Fact” Doctrine Might Apply

WASHINGTON, D.C. (February 16,  2016):  As some legal scholars are suggesting that President Obama fill the new vacancy on the Supreme Court by using a recess appointment – either by itself (to move the Court sharply towards the left until the end of 2016), or as part of an overall strategy towards filling the position permanently, concern has been raised as to whether the Senate could try to block any such appointment.

Regarding the legality of recess appointments, the Supreme Court has indicated that, “the Senate is in session when it says it is.” However, to remain in session, and thereby prevent a recess appointment, the Senate apparently, according to the same opinion, must come in from time to time during that recess to take some kinds of legislative action, even those of little consequence.

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The Senate is currently in a recess which began on Friday, and runs until February 22, under an adjournment resolution adopted on Friday.  The adjournment resolution provides for “pro forma sessions only, with NO BUSINESS being conducted on the following dates . . .” [emphasis added]

So it would appear that a recess under which no business will be conducted would arguably permit Obama to make a recess appointment under the Supreme Court’s 2014 decision.

As Breitbart put it: “Here, the Senate has adjourned for slightly more than ten days. The Senate adopted Senate Concurrent Resolution 31 at 10:18AM on February 12, saying the Senate was out of session until 3:00PM on February 22. That’s ten days, 4 hours, and 42 minutes. Contrary to the opinions expressed by several media reports, this ten-day window CLEARLY TRIGGERS Obama’s power to make recess appointments under [the] Noel Canning [decision].” [emphasis added]

The article, entitled “Mitch McConnell Can Block Obama Recess Appointment to SCOTUS,” reported that “sources on Capitol Hill tell Breitbart News that they do not put it past Obama to make such an extraordinarily controversial move. Sen. Mitch McConnell can eliminate the risk, however, by calling the Senate back into session. Section 2(a) of the adjournment resolution expressly authorizes the Senate majority leader to recall the Senate if, in his judgment, “the public interest shall warrant it.”

In short, while “Obama Has Rare Parliamentary Window to Make Recess Appointment to Succeed Scalia” as Fox News put it, it’s not clear how long that window will be open.

But even if a recess appointment is not valid, it may nevertheless be an effective move for several reasons, argues public interest law professor John Banzhaf, one of the first to suggest the availability of the recess appointment.

First, it’s not clear if such a recess appointment could even be challenged:  whether anyone would have the requisite standing from suffering an injury which would be redressed by a favorable decision, when or even whether any such appointment would be ripe for a judicial decision, etc.

Second, even assuming that a judicial challenge would be possible, there might not be a final judicial resolution until after the appointment expired.  With the recess appointee serving on the high court until there is a final legal resolution of the issue, there would be even more pressure on the Senate to end the arguably intolerable arrangement by voting to confirm a successor.

In this regard, it should be noted that, while the Constitution provides that “Each House [of Congress] shall be the Judge of the . . . Qualifications of its own Members,” there is no corresponding clause which would let even a majority of the Supreme Court block a recess appointee from participating in oral arguments, sitting in on conferences, etc.

Finally, even assuming that any such recess appointment was eventually declared illegal, it is not clear what would happen to any cases in which opinions had already been issued.

In this regard this situation is distinguishable from the Supreme Court’s recent recess appointment cases where the agency, by virtue of illegal recess appointments, did not have a quorum and was therefore powerless to take any action.  Even if the ninth member of the Supreme Court is eventually found to have been appointed illegally, the Court did have a quorum and could take action.

Moreover, it could also be argued that the “office holder in fact” doctrine, part of British common law, would apply.  Under that doctrine, an invalid appointment of a judge does not necessarily invalidate any actions he may have taken.

Indeed, in the recent Fawdry and Coppard cases, that doctrine was applied.  In both cases the Court of Appeals decided that the judge lacked jurisdiction, but used the “office holder in fact” doctrine in refusing to invalidate the judicial actions which had been taken.

So, while professors debate whether Obama should use a recess appointment just to temporarily sway the balance of power or use it to make a permanent nominee seem more acceptable by comparison, or even if and when such an appointment would be upheld, Banzhaf says it might not matter.

Here he notes that a legal action he helped put together challenging the right of a TV station in Washington to fail to have a single Black on-air reporter was eventually tossed, but in the meantime it pressured the major stations to begin using Blacks as on-air reporters and in other major broadcast roles.

In short, one can lose a legal case and still win the battle, or even the war, says Banzhaf.

Taking a chance on a recess appointment might be worth it, he suggests.

Professor of Public Interest Law
George Washington University Law School

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