Pro forma sessions had two particularly useful qualities at the time: the House could not block them, so senators could leave town, and it was reasonable to believe that courts would uphold recess appointments made during the period. Rather than engage in political theater with the House, the Senate majority settled for holding “ pro forma sessions” in which, once every three days, a single senator declared the Senate open and adjourned within a span of seconds. But Senate rules do not permit filibusters of motions to adjourn and, in fact, it was the Speaker of the House of Representatives who claimed authority to block the Senate from taking a recess. The belief that the Senate is in conflict with the President appears to stem from the belief that the Senate minority filibustered the majority’s attempt to take a recess, thereby placing the Senate, as a body, in conflict with the President’s actions. Here is the problem with that view: It is uncontroversial that the Senate majority has generally supported the President’s nominees, and the most plausible inference is that the majority also supported his recess appointments. The Senate attempted to block recess appointments by holding pro forma sessions in December 2011 and January 2012, and the President disregarded the Senate’s wishes when he appointed four officials on January 4, 2012. The common view of the President’s recess appointments is the one promoted by the challengers, which are private parties supported by a minority of senators and the Speaker of the House of Representatives: Noel Canning presents a classic conflict between the President and the Senate. The Court should consider requesting its views. The better approach is to adopt a rebuttable presumption that the Senate majority intended to enable appointments and defer to that perspective unless the challengers demonstrate otherwise.įinally, this Essay gives rise to a cautionary note: there are dangers in adjudicating a major case concerning the President’s and Senate’s respective powers without hearing from the Senate majority. In this controversy, the courts have failed to do either one, likely because they were influenced by the interbranch-conflict narrative. Ordinarily, the courts grant presidential actions a presumption of validity and require challengers to prove claims to the contrary. Because the Senate majority is empowered to decide when the Senate is in recess, the question for courts is not how they (or the President) should define “recess,” but what the Senate majority intended regarding the break it took. 2 At least one commentator has rejected this perspective, arguing that the President holds exclusive authority to decide when the Senate is in recess. The second mistaken view is that courts should resolve Noel Canning by defining the term “recess,” as the lower courts have done. His actions were likely unconstitutional. The Senate initiated pro forma sessions not because the majority wanted to - or because the minority filibustered an attempt to adjourn - but because the Speaker of the House of Representatives claimed to prevent the Senate from taking a recess. This view misses that the Senate majority has the power to decide when the Senate is in recess, and in December 2011 it likely intended to hold a recess that would enable presidential appointments. The first is that Noel Canning presents a classic conflict between the President and the Senate. This Essay responds to two widely held but mistaken views about the controversy that have harmed judicial review and scholarly debate. As a result, the case may dramatically reallocate power between the President and the Senate. Noel Canning 1 asks the Court to choose between polar positions: either the Senate can block all presidential appointments by refusing to confirm nominees and refusing to go on recess, or the Senate’s advice and consent authority may be reduced to nullity because the President can appoint officers during virtually any Senate break. The Senate and the President have sparred over recess appointments for nearly a decade, and the Supreme Court is poised to weigh in.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |