New York Times

Role Reversals Emerge in Dispute Over Obama’s
Recess Appointments

By CARL HULSE JAN. 10, 2014

WASHINGTON — C. Boyden Gray, the former White House counsel and
ambassador, is among the conservative lawyers urging the Supreme Court to
severely constrain the Obama administration’s ability to fill executive branch
vacancies during a Senate recess. Mr. Gray is exceptionally well versed in the
subject, having received his own recess appointment in 2006.

“I have been on both sides of this issue,” said Mr. Gray, who was named
ambassador to the European Union without Senate confirmation by President
George W. Bush on Jan. 17 of that year. “The one for myself was a holiday recess.
It was a real recess, and I don’t think there was any doubt about it.”

What constitutes a real recess is just one of the issues as the fight over
Senate confirmations moves to the Supreme Court. On Monday, the court will
hear arguments in the administration’s challenge of an appeals court ruling that
would tremendously restrict a president’s power to, as the Constitution allows,
“fill up all vacancies that may happen during the recess of the Senate.”

Since George Washington’s time, presidents have relied on the clause to fill
vacancies, with some exploiting it as a founding loophole to circumvent the
Senate’s role of advice and consent. The Senate struggle over nominations forced
the issue to a head in the courts through the legal challenge of President
Obama’s decision to install nominees on the National Labor Relations Board via
recess appointment in January 2012.

The story has a remarkable number of twists, turns and role reversals, even
for a convoluted Washington brawl. Besides Mr. Gray, at least two other
conservative lawyers who are pushing for restraints were put on the federal Legal
Services Corporation board by recess appointment — during the Reagan
administration.

A Congressional Research Service review in February found those three
appointments and hundreds of others since 1981 might have been invalid under
the court ruling being reviewed by the Supreme Court and supported by the
former recess appointees.

Defenders of the administration say the fact that Mr. Gray and others who
received recess appointments now contest the power is evidence that the
conservative complaint is more about the Obama administration’s ability to fill
vacancies.

“It helps show how aggressive conservatives have been in the past in arguing
for strong executive power and utilizing the recess appointments clause,” said
Doug Kendall, the president of the Constitutional Accountability Center. “The
conservative case for a broad recess appointments power is strong, and the wails
expressed by conservatives over President Obama’s utilization of the clause are
crocodile tears.”

Adding to the atmosphere, the lawyer who will represent Senate
Republicans at the Supreme Court is Miguel Estrada, whose nomination to the
United States Court of Appeals for the District of Columbia Circuit by President
Bush was blocked by Senate Democrats in 2003, touching off the current
nomination fight.

It was that same court that ruled against the Obama administration on the
National Labor Relations Board recess appointments. One of the chief
arguments for ruling the appointments invalid was that the Senate was not in
recess at the time since it was holding pro forma sessions every few days.

That tactic was actually first engineered by Senator Harry Reid, the
Democratic majority leader, to thwart Mr. Bush from making any more recess
appointments.

Mr. Reid played another card in the nomination fight in late November
when he orchestrated the move by Senate Democrats to make a simple majority
sufficient to overcome a filibuster on nominations except for the Supreme Court.
That action has, for the moment, limited the need for Mr. Obama to make more
recess appointments since he can win confirmation of nominees by simple
majority as long as Senate Democrats are willing to use the required Senate floor
time.

“The rules change has taken the steam out of the issue,” Senator Charles E.
Schumer of New York, the No. 3 Senate Democrat, said about the recess dispute.

But if Senate Republicans were to win the majority next year — not an
inconceivable notion — Mr. Obama could again be forced to use Senate recesses
to install contentious nominees, and a Supreme Court ruling against recess
appointments could limit his options.

In the case now known as National Labor Relations Board v. Noel Canning,
No. 12-1281, the federal appeals court delivered a stunningly narrow definition
of a recess appointment. It said that such appointments could be made only
during a declared recess between Senate sessions and that the only vacancies
that could be filled had to occur during that recess.

It was a very strict interpretation of the constitutional clause written two
centuries ago when there were long breaks between sessions because of travel
and communication difficulties. The ruling went far beyond how the power of
recess appointments has been interpreted in modern times, when presidents
have often taken the opportunity, even during short breaks, to make
appointments.

The administration appealed the appeals court ruling, saying in its brief
that “the practice of making an appointment during a recess to fill a vacancy
that predated the recess is so well and long established that it is impossible to
determine how many such appointments have occurred in the last 190 years.”
Even critics of the appointments concede that the ruling could have gone too
far. But they say the administration overreached with the N.L.R.B. appointments
by making them during a period when the Senate was meeting every three days
in pro forma sessions. Conservatives see it as another example of the Obama
administration’s abusing its executive authority.

“This is part of a larger battle,” said William J. Olson, who filed a brief
supporting the appeals court decision on behalf of Citizen United and other
conservative organizations. “Presidents want to be able to avoid the role of the
Senate.”

Mr. Olson says his own recess appointment to the Legal Services
Corporation board of directors by President Ronald Reagan on Dec. 31, 1981,
met the test of coming between sessions. It is a bit unclear as to whether the seat
he filled can be considered to have come vacant during the same recess — the
other test.

“It never came up at the time,” he said.

Mr. Gray, who wrote a brief on behalf of the Competitive Enterprise
Institute and others who challenged a recess appointment to the Consumer
Financial Protection Bureau, said he expected the Supreme Court to stray from
the appeals court stance but impose some limits.

“I don’t think the Supreme Court is going to go as far,” he said. “I think they
will say there has to be a real recess, that it can’t just be lunch hour.”
 

A version of this article appears in print on January 11, 2014, on page A11 of the New York edition with the
headline: Role Reversals Emerge in Dispute Over Obama’s Recess Appointments.