Could a SCOTUS Appointment Bypass the Senate and be Constitutional?

If you have not read “Rest in Peace Justice Antonin Scalia,” I encourage you to do so in order to frame what you are about to read in context.

President Barack Obama may be able to appoint a Justice to the Supreme Court to fill the seat vacated upon the death of Justice Scalia for the remainder of the 114th Congress without the approval of the US Senate.  This appointment would be in accordance to the Constitution and the most recent interpretation by SCOTUS which took place in the year 2014 with a 9 to 0 decision in National Labor Relations Board v. Noel Canning.

In that case the Court ruled that “recess appointments” made by President Obama while the Senate conducted pro forma sessions were unconstitutional.

“Justice Stephen G. Breyer delivered the opinion for the 9-0 majority. The Court held that a pro forma session does not create a recess long enough to trigger the Recess Appointments Clause. While the term “recess” in the Clause refers both to inter-and intra-session recesses, its legislative history and historical context indicate that the term should be presumed to mean a recess of substantial length. The Court held that the three-day break that occurs during pro forma sessions does not represent a significant interruption of legislative business and therefore cannot justify the exercise of the Clause. Additionally, a pro forma session cannot be viewed as a single, long recess because the Senate retains its capacity to conduct business during such sessions. Because recess appointments made during a recess that was shorter than ten days have been so historically rare, the Court held that ten days was the appropriate presumptive lower limit to place on the exercise of the Clause. The Court also held that the Clause applies to vacancies that occur during a recess as well as those that originally occur before a recess but continue to exist at the time of the recess. Although a plain reading of the Clause does not require such an interpretation, the historical context of the wording favors the more broad reading because a vacancy can be considered a continuing state.

Justice Antonin Scalia wrote a concurrence in judgment in which he argued that the Recess Appointments Clause was only meant to cover breaks between congressional sessions rather than breaks within them. Therefore, the appointments in question are invalid because they were made during the session. Justice Scalia argued that a plain reading of the text as well as the historical meaning of the term “recess” clearly places it in opposition to the term “session,” and it is therefore illogical to interpret the Clause as allowing appointments while Congress is in session. In offering a broader reading of the Clause, the majority opinion disregards the Clause’s purpose: to preserve the balance of power between the President and the Senate regarding appointments. Justice Scalia also argued that the majority’s ten-day rule cannot stand because it is based purely on judicial interpretation of historical practices without any textual basis. For these same reasons, the Clause should be read as only granting the President the power to fill vacancies that originally occurred during a recess. Chief Justice John G. Roberts, Jr., Justice Clarence Thomas, and Justice Samuel A. Alito, Jr. joined in the concurrence in judgment.”

How could that apply here?

On 12 February 1016, the US Senate agreed by unanimous consent to Senate Concurrent Resolution 31.

Consider that Senate resolution for adjournment with the official record in the Daily Digest of the Congressional Record, and one can see that any pro forma sessions during this recess were contingent upon concurrence of the House of Representatives on the adjournment resolution.  The House concurred, and therefore without consultation of the Minority Leader in the Senate, the body is in recess from the date of consent until it reconvenes at 2:00 p.m. on 23 February 2016.

The presumptive lower limit of “10” days will have been met.  Justice Scalia wrote in his concurrence of the majority decision that “…the Clause should be read as only granting the President the power to fill vacancies that originally occurred during a recess.”  The vacancy created by his passing occurred during such a recess which is scheduled to exceed 10 days.

Do I believe that an appointment should be made in this manner?

Absolutely not.

Would such an appointment be legal under the provision of “recess appointments?”

Personally I would hope not because I do not see such an appointment within the spirit or intent of the clause.  I, however, did not believe that pro forma sessions equate to actually be in session, but obviously Justice Scalia along with the other justices on the Supreme Court differed from my opinion.

It would be interesting, and nobody seems to realize the possibility.