My post last night was based on the widely-reported but seemingly incorrect claim that the Senate was currently in recess, allowing the President to make a recess appointment to fill the vacancy on the Supreme Court created by the death of Justice Scalia.

In fact, it appears that the Senate will be holding pro-forma sessions during the break. Under the Supreme Court decision in NLRB v. Noel Canning, such sessions, even if no legislative business is done, establish that the Senate is not in recess:

For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.

That same decision found that, in general, the Senate must be out of session for at least 10 days for a recess appointment to be valid. Thus it would appear that, if Sen. McConnell is really determined to stonewall an appointment, the President cannot use the recess-appointment power to tunnel under that stone wall.

However, at least according to one reading of the decision, the President and his Democratic allies in the Senate have the ability to make the maintenance of that wall intolerably expensive, in political terms, and give everyone a huge horse-laugh at the Republicans’ expense. I think they should do so.

To recap the earlier argument:

  1. Scalia’s death leaves a court divided 4-4 on important issues. If the vacancy remains unfilled for more than a year, the court will be unable to make decisions with precedental value, leaving lower-court rulings undisturbed. As a result, the law may say one thing about about immigration or labor rights or birth control in one federal judicial circuit and say the opposite in the others.
  2. Worse, if the Court needs to arbitrate what may become a Constitutionally hairy Presidential election, it might well deadlock.
  3. Worse yet, the election of a President Clinton – or, even more so, a President Sanders – with a Republican-controlled Congress could set up major Constitutional confrontations, again calling for resolution by the Court, which again could be unable to come to a decision.
  4. The Constitution says that the President “shall” nominate the Justices. That makes it his duty.
  5. Ronald Reagan argued in 1988 that keeping the court up to strength is a “Constitutional obligation” that both the President and the Senate had a duty to fulfill.
  6. Since the Senate Majority Leader has indicated the Senate’s unwillingness to carry out that function, it is arguably the President’s duty to fill that vacancy, if he has the power to do so.
  7. The recess-appointment authority creates just that power.
  8. Ergo, the President should make a recess appointment, or threaten to do so to induce McConnell to agree to a timely floor vote on a nominee submitted in due course.

However,  under Noel Canning, there is no recess, and therefore no recess-appointment authority, as long as the Senate keeps holding pro-forma sessions at least once every ten days. But – according to Supreme Court advocate and Scotusblogger Tim Goldstein – the pro-forma trick works only because holding the meeting shows that the senate has “the capacity to act, under its own rules.” That capacity rests on a presumption: according to the rules of the Senate, a quorum is presumed to be present unless someone demands a quorum call. The Senate can therefore do business, or even pass legislation by unanimous consent, unless someone points out that a quorum is not, in fact, present.

Once a quorum call is demanded, the Senate cannot take any legislative action until an actual quorum is established. If that never happens, then the Senate lacks “the capacity to act, under its own rules.”

So it looks as if the Democrats could call McConnell’s bluff.

According to the currently posted schedule, the Senate plans to take a break from Friday, July 15 to Monday, September 5 and again from October 10 to November 11, presumably with pro-formas every three days (because the Constitution forbids either house to adjourn for more than three days without the consent of the other).  So, on Monday, July 18, McConnell or one of his deputies shows up in the chamber, with another Republican to act as President Pro Tem, planning to meet and adjourn. But – surprise! – Harry Reid or some other Democrat also shows up and says, as soon as the session is called to order, “Point of order! Mr. President, I make the point of order that a quorum is not present.” (The presiding officer has no right to ignore that, but just for insurance Joe Biden could actually show up, too, in his role as President of the Senate.)

Since there’s not merely no quorum present but no quorum in town, the pro-forma must adjourn: that’s the one action, other than compelling the attendance of absent members, either House can Constitutionally take with less than a majority.

Having established that the Senate is then in recess, and does not have “the capacity to act, under its own rules,” the President makes a recess appointment. Now McConnell has ten days from the date of the last actual session (or unchallenged pro-forma) to round up his troops. If he can do that, the recess appointment becomes invalid, because the Senate was not in recess for at least ten days. No Democrat is inconvenienced at all, except the one guy to make the quorum call; since the pro-forma isn’t going to take any real action, there’s no need to show up. But forty-nine Republicans have to drag their sorry butts back to DC, just to say “Present.” And as soon as they go home, the Dems do it again.

Not only does this put a serious crimp in the home-state campaigning of the Rs up for re-election; it makes the entire Republican Caucus a national laughing-stock, and makes the otherwise boring procedural story of the Senate refusing to do its job telegenic.

At that point, McConnell has two choices:

  1. 1. Keep playing the game, creating a great campaign issue for the Democrats and great heartache for his members facing re-election in Blue and Purple states;
  2. 2. Fold and let the recess appointment happen.

I think he has to fold. Or maybe, when the President makes it clear that he’s ready to go to the mat on this one, McConnell agrees to hearings and an up-or-down floor vote on the President’s nominee. If that nominee is well-chosen, voting against him would also create political heartache for vulnerable Republican Senators.

The current recess is only scheduled for 10 days, so the strategy won’t work now. And that means the President should promptly send forward a nominee in the regular course of business, even if that person isn’t the one who would be named as a recess appointee if push came to shove.

Pass the popcorn.

[Cross-posted at The Reality-Based Community]

Our ideas can save democracy... But we need your help! Donate Now!

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.