Just when you thought the news could news could not get any worse comes this…
Elizabeth Price Foley at Instapundit today argues that Barack Obama can indeed make a recess appointment to replace Justice Scalia on the Supreme Court because the US Senate, under the leadership of Mitch McConnell, scheduled a recess for over 10 days.
The appointment would last until the end of the 114th Congress, which occurs on January 3, 2017.
COULD OBAMA MAKE A RECESS APPOINTMENT TO REPLACE SCALIA?: The answer appears to be “yes,” because (once again), the GOP-controlled Senate voluntarily has left itself vulnerable to the exercise of such presidential power. Article II, section 2 of the Constitution gives the President power to fill vacancies “during the recess of the Senate”:
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.
There’s a lot of misinformation out there. For example, a report by Fox News mistakenly focuses on the Adjournment Clause of Article I, section 5, which merely states that neither House of Congress may adjourn for more than three days without the consent of the other…
a Senate recess of fewer than 3 days is not enough to trigger the President’s recess appointment power; the Senate’s recess must be at least ten days in duration.
So how long is the Senate’s present recess? It began on Friday, February 12, with the passage of S. Con. Res. 31 which states:
That when the Senate recesses or adjourns on any day from Thursday, February 11, 2016, through Saturday, February 20, 2016, on a motion offered pursuant to this concurrent resolution by its Majority Leader or his designee, it stand recessed or adjourned until 12:00 noon on Monday, February 22, 2016, or such other time on that day as may be specified by its Majority Leader or his designee in the motion to recess or adjourn, or until the time of any reassembly pursuant to section 2 of this concurrent resolution, whichever occurs first; . . .
Sec. 2. (A) The Majority Leader of the Senate or his designee, after concurrence with the Minority Leader of the Senate, shall notify the Members of the Senate to reassemble at such place and time as he may designate if, in his opinion, the public interest shall warrant it.
A Senate recess from February 12 (at noon) until February 22 (at noon) is a recess of exactly 10 days. Thus, under Noel Canning, the Senate is potentially in recess, and President Obama’s recess appointments power may be exercised.
Under S. Con. Res. 31, the only way to recall the Senate back into business before February 22 is with the “concurrence [of] the Minority Leader of the Senate,” Harry Reid (D-NV). Somehow I doubt Sen. Reid will grant such concurrence to reconvene, should President Obama decide to use this 10-day recess to make a recess appointment and replace Justice Scalia. But should President Obama try use this particular 10-day recess to replace Justice Scalia, the replacement would only be constitutionally permitted to serve until the end of the next session– i.e., until the end of the 114th Congress, which occurs on January 3, 2017.
But there is another potential wrinkle. Specifically, the Congressional Record of February 12 shows that Senate declared that it would be in pro forma session (where a member of the Senate gavels in and gavels out every few days), declaring:
A unanimous-consent agreement was reached providing that when the Senate completes its business on Friday, February 12, 2016, it adjourn, to then convene for pro forma sessions only, with no business being conducted on the following dates and times, and that following each pro forma session, the Senate adjourn until the next pro forma session: Monday, February 15, 2016, at 11:00 a.m., and Thursday, February 18, 2016, at 9:00 a.m.; and that when the Senate adjourns on Thursday, February 18, 2016, it next convene at 3:00 p.m., on Monday, February 22, 2016, unless the Senate receives a message from the House of Representatives that it has adopted S. Con. Res. 31; and that if the Senate receives such a message, it stand adjourned until 3:00 p.m., on Monday, February 22, 2016.
Notice, however, that the pro forma status of the Senate’s recess is made conditional: “unless the Senate receives a message from the House of Representatives that it has adopted S. Con. Res. 31; and that if the Senate receives such a message, it stand [sic] adjourned until 3:00 p.m., on Monday, February 22, 2016.”
Unfortunately for the GOP Senate, however, the GOP-controlled House agreed to S. Con. Res. 31 on February 12 without objection. This means that under the plain language of S. Con. Res 31, the Senate is “in recess”–and not in pro formasession.
If this is indeed the case, the Senate is presently in the midst of a 10-day recess (not a pro forma session), and under Noel Canning, President Obama currently possesses the power to make a recess appointment to the Supreme Court until noon on February 22, when the Senate comes back in session.