Table Cited Authorities
- Attorney General Daugherty 1921 Opinion
- Attorney General Writ 1823 Opinion
- Edmund Randolph in 1792 Opinion
- The Harlan Institute
- Letter from George Washington to William Drayton
- Speech of Archibald Maclaine
- Letter from Alexander Hamilton to James McHenry
- Letter to Senate Committee on Treaties and Nominations 10 August 1789
- The Constitution of the United States
- The Federalist No.67
- The Federalist No. 77
- US Senate website
Summary of arguments
Two things are for certain in this case, words have meanings and laws are made up of rules for a specific purpose. The United States has run very well under the US Constitution since 1787 for a reason, it has acted as the back bone of our great society the cement that keeps us together, and the rationale for our existence. We must not go against or if we do, we suffer some very serious repercussions. In this case there are three major questions that are covered very specifically in the U.S. Constitution. Since there is no higher authority than the Constitution, we must defend to the death our ability to maintain the integrity so that our union will never die, but live and live as a beacon of all nations to see. The respondent clearly agrees with the correct lower court ruling and calls for this decision to be upheld in the Supreme Court.
We the respondents in this case offer seven reasons to have this Court uphold the lower court’s ruling on the following three points.
(1) Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate
(2) Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess
(3) Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
First and foremost, this is a case about the Separation of Powers in the three branches. The U.S. Constitution was written after the almost unworkable Articles of Confederation with a very weak central government failed. The Founding Fathers knew that this would not work but they were equally worried about giving any one branch of the central government too much power as well. This is why they devised this policy of Advice and Consent. It would allow for greater power in the central government and it would allow for different branches of the government to keep an eye on each other. Many early state constitutions either limited the executive power of their chief officers with a council of advisers or gave some executive authority, such as the appointment power, to state legislatures. Individual states had a strong basis in their constitutions to provide this power. Maryland’s 1776 Constitution delineated appointment power as unitarily held by the state legislature, the General Assembly. The Governor had power to fill only a few vacancies, and these he would fill in accordance with the advice of his Council. Pennsylvania sharply limited executive power in its 1776 Constitution; although the legislature’s executive council elected a president and vice president, these officers were practically powerless. In some cases, the executives of the state could exercise their authority on their own, but these instances were limited to the issuing of trade embargoes. Ratified in 1778, South Carolina’s Constitution mandated that the state legislature would elect the Governor and that the Governor could only appoint officials with the “advice and consent” of his Privy Council. Similar to the Pennsylvania Constitution, the Governor could exercise limited power in the recess of the legislature, but this power was also limited to trade embargoes. When issue of government appointments was taken up at the 1787 Constitutional Convention, the opinion of the delegates was divided; the convention was deadlocked in deciding whether or not appointment power should be unitarily vested in the President. It was Alexander Hamilton that successfully broke this deadlock by proposing the jointly held appointment power model that is represented in the Constitution. The first President George Washington set the tone for how it worked in his Letter to Senate Committee on Treaties and Nominations 10 August 1789. In this letter Washington acknowledged, “ The President has the “power by and with the advice and consent of the Senate, to make treaties and to appoint Officers.” He also went on to add that manner of consultation may vary but never did he ever say that there would be no consultation whatsoever.
Second, this case goes to the very core of the Constitution and what is exactly the duty of the Senate. Article 2 Section 2, Clause 2 of the U.S. Constitution states “[The President] shall nominate, and, with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” In effect the Constitution gives the Senate the power to advise and consent. They set no time limits and set out no time frame to do such. What they did was to purposefully limit powers of each branch of government because they knew firsthand what it was like to live under a government that did not do this. The question is not that it would run smoothly or the fact that a single person in charge may not be better, the question was what is best in the long run for the country. This position is backed up with a great deal of input by the Founding Fathers who had experienced firsthand living under a much different system. The Drafters of the Constitution were wary of skewing power towards any one branch of government. Thus, giving the Senate “advice and consent” power ensures that the President is not the only authority involved in the vetting and appointment of candidates for important executive positions and federal judgeships. Long considered an important feature of the checks and balances based political structure that would later become the hallmark of the American system, many early state legislatures were constitutionally empowered to make appointments on their own in order to limit the influence of state executives. To back up this point of view please cross apply the fact that State constitutions drafted and ratified when the country was governed by the Articles of Confederation sharply circumscribed the role of executives in exercising the power to appoint officials on account of the then-widespread fear of centralized power and executive tyranny. Today there may not be this fear, but in late 18th century there was. This fear was borne out of experience with the British crown and his royal governors.
Third what does the Constitution say is the President’s Duty with respect to these appointments? Here the best source of information may be to look more at the First President’s letter to the Senate. The first President ended his letter to the Senate with these remarks, “If these remarks be just, it would seem not amiss, that the Senate should accommodate their rules to the uncertainty of the particular mode and place that may be preferred; providing for the reception of either oral [or] written propositions, and for giving their consent and advice in either the presence or absence of the President, leaving him free to use the mode and place that may be found most eligible and accordant with other business which may be before him at the time.” Clearly you see a President who understood how to work with people. This is not an adversarial process unless you make it one. It is also interesting to note that President Washington left a great deal of room for change- mentioning that different Presidents may see things differently and different Senators may see things differently. However, the overall structure would remain the same always. When the U.S. Senate changed their rules to require a 60 votes to pass a judge or political appointment, the President should have lobbied to make that a simple majority of 51 instead. According to Washington’s letter- you don’t have to change the purpose of the Constitution just because you do not get your way. This is logical fallacy of burden shift that petitioner have tried to lay at the feet of the respondent. Somehow, it was the respondent’s fault that the President didn’t get his appointments. If you look at their argument in its entirety you will see that it is riddled with belief that Advise and Consent is nothing more than a rubber stamp for everything a President wants.
Fourth, what is a Recess Appointment is not according to the petitioner’s concept but what is according to the U.S Constitution. With respect to vacant positions that occur during recesses of the Senate, when their “advice and consent” is not available, the President is empowered to appoint officials to fill these vacancies. The “Recess Appointments Clause” addresses this power:“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Article II, Section 2, Clause 3. The definition of a “recess appointment” and the scope of executive power to make these appointments were concepts formed over a number of years. In the Revolutionary era, the majority of state constitutions allowed for their executive officers to make decisions while the legislature was not in session, but these actions were temporary, and would typically expire at the end of the legislature’s next session, unless the legislature approved of the action. In its 1776 Constitution of North Carolina, for example: “XX. That in every case where any officer, the right of whose appointment is by this Constitution vested in the General Assembly, shall, during their recess, die, or his office by other means become vacant, the Governor shall have power, with the advice of the Council of State, to fill up such vacancy, by granting a temporary commission, which shall expire at the end of the next session of the General Assembly…” North Carolina Constitution, Art. XX, while unanimously approved by the delegates to the Constitutional Convention in Philadelphia, the Recess Appointments Clause was subject to further debate during the ratification period and thereafter. Federalists, members of the political faction supporting the Constitution’s ratification, argued that the recess appointment power was a stopgap measure to ensure the continued efficient operation of the government. However, Anti-Federalists, who were against ratification, contended that this ability was an unjust manipulation of circumstances to give the President a tyrannical share of power. The petitioner’s pleas are not new. They can be heard in the 18th century. It was a great thing that was the case. When the Constitutional Convention of 1787 met to draft the Federal Constitution, the delegates, encouraged by Alexander Hamilton, decided on the current appointments arrangement presented in the Constitution. Hamilton had proposed this plan as a means of compromise in order to break the deadlocked debate on the issue. He elaborated this concept in Federalist 77, giving both the President and the Senate a share in the appointment power ensured that no branch would have unitary control over the process. Hamilton contended, and subsequent interpreters of the Constitutional arrangement would agree, that the House of Representatives was to have no role in the appointment process. As he noted in Federalist No. 77: “A body so fluctuating, and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all . . . All the advantages of the stability, both of the executive and of the senate, would be defeated by this union; and infinite delays and embarrassments would be occasioned. The example of most of the states in their local constitutions, encourages us to reprobate the idea.” However, should the House want to indirectly involve itself in the appointment process, it can influence the Senate’s action by withholding its power of consent over the Senate’s ability to adjourn for a recess. (Article I, Section 5). This is exactly what happened in this case. It was politics gone wild, it was what Alexander Hamilton said would happen if the President wasn’t listening to the Senate. This tactic forces the Senate to stay in session while taking intermittent three-day recesses (called a pro-forma session) and would ostensibly prevent the President from making a recess appointment because of the modern convention that a “recess” is at minimum a duration of four days. The constitutionality of the use of a “recess appointment” by a President during a pro-forma session is one of the issues being considered in National Labor Relations Board v. Noel Canning Company. Since this is the tactic is specified in the U.S. Constitution as a power of checks and balances that the House has over the Senate, the petitioner cannot claim this is new or political usurpation of their rights. It is actually the opposite. All it is the exercise of the House’s rights to keep the Senate in session which makes the petitioner’s argument that the Senate was not in session moot.
Fifth, the petitioner claims the Senate was not in recess. However please cross apply the Federalist argument here. Hamilton explained clearly how the Senate and House would act. The House ability to created a pro-forma session is the technical way the House can keep the Senate in session. This was a separation of powers – check and balance on the Senate. Both houses of Congress can not adjourn without the consent of the House of Representatives. Therefore, baring this official consent, the Senate cannot go on adjournment. Therefore, the petitioner’s have it wrong when they said the President could do a recess appointment in a pro-forma session. It would be illegal. The session might not include all of the Senate but it is a legally binding meeting and meets the minimum standards under the Constitution. Without the approval of the House this pro-forma session counts as the Senate in session and would not trigger the Constitutional requirements of a Presidential recess-appointment.
Sixth, the President clearly over stepped his bounds on this one. President George Washington in his letter to William Drayton explained the limits of Presidential recess appointments. “Sir. The Office of Judge of the district Court in and for South Carolina District having become vacant; I have appointed you to fill the same, and your Commission therefore [sic] is enclosed. You will observe that the commission which is now transmitted to you is limited to the end of the next Session of the Senate of the United States. This is rendered necessary by the Constitution of the United States, which authorizes the President of the United States to fill up such vacancies [sic] as may happen during the recess of the Senate—and appointments so made shall expire at the end of the ensuing Session unless confirmed by the Senate; however there cannot be the smallest doubt, but the Senate will readily ratify and confirm this appointment, when your commission in the usual form shall be forwarded to you.” Here you clearly see that Presidential appointment was temporary until the Senate was back in session. In the Federalists 67 Hamilton underscores his belief that the Recess Appointments Clause was not the default appointing mechanism, and instead would act as a supplement to the preceding Appointments Clause.“The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons-First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other; for the purpose of establishing an auxiliary method [of] appointment in cases, to which the general method was inadequate. The ordinary power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers; and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorise [sic] the President singly to make temporary appointments during the recess of the Senate, by granting commissions which should expire at the end of their next session.”
Seventh, there is the Constitutional Question. If the petitioners have their way our Constitution would be effectively changed forever. Do we really want to revisit the idea of rewriting the Constitution? Do we want to take away the Checks and Balances and go back to a unitary government with dictator or monarch as leader? The absurdity of the present arrangement becomes clear once one realizes that this arrangement does not operate to allow the President to make appointments merely when the recess prevents the Senate from giving advice and consent, but instead allows the President to circumvent senatorial advice and consent. The original meaning of the Recess Appointments Clause is well designed to limit recess appointments to situations when the Senate’s recess prevented the appointment. The Clause says that the President “may fill up all Vacancies that may happen during the Recess of the Senate.” This strongly suggests that the vacancy must arise during the recess and the recess appointment must occur during that same recess. The first Attorney General opinion on the subject, written by Edmund Randolph in 1792, adopted this interpretation. When the Congress was in recess for long periods – as long as nine months at a time – this recess appointment power worked quite well. If a vacancy occurred in a needed position, the President filled it quickly. The first error that was introduced into the law occurred when Attorney General Wirt in 1823 reversed this opinion and concluded that the President “had the power to fill up all Vacancies” during any recess, irrespective of when the vacancy first occurred. This was bad overreach of power, but its effect on the law was still limited because the law and practice still mainly restricted recesses to intersession recesses. In 1901, Attorney General Knox wrote an opinion adopting that interpretation. But in 1921, Attorney General Daugherty wrote an opinion, concluding that recesses referred not merely to intersession recesses but also to intrasession recesses and we were off to the races. Over time, the executive branch has shortened the length of the recess that would allow a recess appointment from 10 – 30 days down to 3, and the President can now freely circumvent the senatorial advice and consent. This overreach must be stopped.
The Constitution is clear in this case. The Constitution clearly stands behind the lower court ruling. You cannot have three branches of government with one branch of government dictating to the other two, that is what the petitioner is exactly asking for here. You can’t change the Constitution simply because you want to- you must go within the means required by the law. Court should uphold the lower court’s ruling on the following three points.
1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate- as clearly pointed out, the House had not approved a Senate recess and the Senate was not in recess when these appointments were made. This is an over reach of Presidential powers and should not be tolerated by our Republic. Vote to uphold the lower court’s decision
2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess. This is an original doctrine that has been changed three times in the past 225 years. The original intent as stated by Jefferson, Adams, and Hamilton is that the only vacancies were the ones that came open in a vacancy. In this case, the situation is much clearer- there was no recess so this ability was not called in in this case and the lower court’s ruling on this should be upheld.
3. Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions. Pro-forma sessions are by definition still sessions as required by the House who never gave its constitutionally guaranteed approval to a Senate recess. Therefore, technically the Senate is in session. Vote to uphold the lower court’s decision in this case.
Clearly, the lower court had it right and supported the U.S. Constitution. We pray that this Court will do the exact same.