No, Obama’s not going to recess-appoint Merrick Garland to the Supreme Court tomorrow
posted at 9:01 pm on January 2, 2017 by Allahpundit
Drudge was touting this far-fetched yet highly entertaining Washington Times piece this morning because it’s a slow news day and we all crave drama. Twice now in the past month, desperate liberals have considered procedural chicanery on January 3rd to try to put Garland on the Court over Republican objections. The first example called for Democrats to vote to confirm Garland tomorrow during the brief period before the newly elected senators are sworn in, when Dems will momentarily have a plurality in the Senate. There are all sorts of reasons why that can’t work — read about it here — but that inane plan at least has the virtue of making Garland’s appointment permanent if it worked. Which it wouldn’t.
The new plan is simpler, calling for Obama to appoint Garland to the Court during the five-minute recess tomorrow between the time the current Senate session is gaveled out and the next one is gaveled in. This has been done before, believe it or not. Teddy Roosevelt made more than 100 executive recess appointments during the “infinitesimal” intersession recess of 1903. What if Obama made the same move tomorrow? Could he get away with it?
A smattering of activists has asked him to give it a try, but Mr. Obama has given no indication that he’s thinking about it. The White House didn’t respond to a request for comment for this story…
William G. Ross, a law professor at Samford University in Birmingham, Alabama, said Mr. Obama would have the power to elevate Judge Garland. But he said it would be “politically unwise and damaging to the prestige of the court.”
“It would exacerbate acute political tensions that have roiled the transition process and promise turbulence from the very start of the Trump administration, and it would contribute to the growing public perception that the court is unduly political,” Mr. Ross said.
It’s a bad idea, sure, but could he get away with it? Answer: Nah, probably not. Teddy Roosevelt lived in an age before the Supreme Court’s landmark 2014 decision on recess appointments in NLRB v. Canning, and although that case didn’t squarely address the idea of an “infinitesimal” intersession recess, it gave a pretty strong hint how the Court would decide:
We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word “presumptively” to leave open the possibility that some very unusual circumstance—a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response—could demand the exercise of the recess-appointment power during a shorter break. (It should go without saying—except that JUSTICE SCALIA compels us to say it—that political opposition in the Senate would not qualify as an unusual circumstance.)
In sum, we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, §5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.
If a recess of less than 10 days is presumptively too short to allow for recess appointments, a recess of five minutes is presumably way, way too short. The best liberals can do to explain away that passage from Canning is to note that it’s “dicta,” material in the opinion that’s not directly related to the specific holding in the case and therefore not binding on the Court as a precedential matter. Right, but good luck squaring the underlying logic of Canning, which is that recesses need to be of some considerable duration to trigger the president’s recess powers, with the idea of an intersession recess that lasts mere minutes. “The purpose of the [Recess Appointment] Clause,” said the majority in Canning, “is to ensure the continued functioning of the Federal Government while the Senate is unavailable.” That’s not a problem when the Senate is “unavailable” for a few hundred seconds.
And even if it were, there’d be a high cost to Obama in appointing Garland this way. I don’t mean the high cost of wrecking his future ability to influence President Trump, who’s already grumbling about the “roadblocks” O has set for him. I don’t mean the backlash it might generate either among congressional Republicans, who would go to court to try to stop Garland’s appointment and might punish Democrats by, say, eliminating the filibuster on Trump’s Supreme Court nominees. I’m talking about this — an excellent point from the Wash Times:
Worse yet for Mr. Obama, Judge Garland would lose his seat on the U.S. Court of Appeals for the D.C. Circuit — oftentimes dubbed the second-most powerful court in the country. That means the president would be trading a lifetime of Judge Garland for less than a year of Justice Garland.
A vacancy on the D.C. Circuit is no small matter. That’s the court that hears appeals in disputes between branches of the federal government and matters involving administrative law set by federal agencies. Hugely influential case law comes out of that circuit, with many of its judges ultimately being elevated to the Supreme Court. An extra vacancy there would be a golden opportunity for Trump to send a young conservative legal star to the bench. And at best, all Obama would get in return would be Garland on the Court until January 2018. He might not even get that: One legal scholar has argued that the Senate could defeat a recess appointment by adjourning sine die, i.e. voting to end its new session early, which would immediately end Garland’s appointment, and then voting to reconvene, whereupon it could take up the business of confirming his replacement. There are conditions that go with that — the House would need to consent, for one thing, but that would be no problem given the Republican majority in that chamber. Imagine if O did what the left wanted and pulled this stunt with Garland tomorrow, only to find the appointment effectively nullified on January 20th by the GOP’s own version of procedural chicanery, an instantaneous adjournment and reconvention. It’d be just desserts.
Exit question: If Obama was going to appoint Garland this way, wouldn’t he have done it in February, when there actually was a long Senate recess? C’mon.