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Symposium: How would Edward M. Kennedy have approached the Noel Canning case?

This week we are hosting an online symposium on National Labor Relations Board v. Noel Canning, in which the Court will consider the constitutionality of the president’s recess appointments to the NLRB.  Lyle summarized the issues in the case last week in a “Made simple” post.

The following contribution comes from James F. Flug, Adjunct Professor of Law, Law & Government Program, Washington College of Law, American University; formerly, inter alia, Chief Counsel to Senator Edward M. Kennedy (1967-73; 2003-06).  

On December 14, 1970, Congress presented S. 3418, the Family Practice of Medicine Act, overwhelmingly passed in both Houses, to President Nixon for approval.  On December 22, Congress adjourned for Christmas, the Senate until December 28, the House until December 29.  On December 24, Nixon announced that he would not approve the bill.  He did not, “within ten days (Sundays excepted)”   “return it, with his Objections” so that both Houses could “proceed to reconsider it” (Article I, §  7, ¶ 2) and override his veto if two-thirds of both Houses so voted.  He contended, pursuant to the Constitution, that “Congress by their Adjournment prevent[ed] its Return, in which Case, it shall not be a Law” – that is, it had been “pocket vetoed,” precluding Congress from overriding it.

In 1972, Senator Edward Kennedy, a supporter of S. 3418, asked the U.S. District Court for the District of Columbia to rule that, because the president failed to return it to Congress with his objections within ten days, S. 3418 automatically became “a Law, . . .  as if he had signed it,” and that Congress’s Christmas recess did not “prevent its return,” since the Senate explicitly authorized its Secretary to receive presidential messages. In 1974, the D.C. Circuit affirmed the district court’s rulings upholding Kennedy’s standing and his constitutional position.  It sustained his right as a senator to enforce the president’s obligation either to sign the bill, allow it to become law without his signature, or veto it by returning it to Congress for reconsideration, subject to an override by a two-thirds vote in each House.

Almost thirty-five years later, Senator Kennedy litigated an analogous challenge to President George W. Bush.  Bush, unable to obtain Article II Senate consent for some judicial nominees, invoked the Recess Appointments Clause, which allows the president to temporarily fill vacancies that “happened” during “the Recess” of the Senate – presumably the long annual eighteenth-century inter-session recesses, when the Senate would have been literally unavailable to “consent.” But Bush, like Nixon, used an intra-session holiday recess, the February 2004 Presidents’ Day break, to avoid Senate review. Moreover, he selected  a vacancy which “happened” over three years before that “recess,” a lifetime (“good behaviour”) Article III Circuit Court seat, and a person whom the Senate declined to confirm for ten months. Most inexplicably, Bush waited until the last business afternoon of the recess to drop this surprise, so the appointee could be sworn in within minutes, rather than after the Senate reconvened.  Normal nomination the next business day would immediately have triggered the confirmation process during a regular Senate session, so there was no functional reason for a recess appointment – other than Bush’s desire to bypass the Senate.

Again Kennedy resisted, both because the chronology failed the recess appointment tests, and because Article III’s “good behavior” requirement, assuring judicial independence, precluded temporary Article III appointments.  With the new judge already seated, Kennedy immediately alerted the other judges – by mail – to their sua sponte responsibility, under clear Supreme Court precedent, to assure that they were not empanelled or en banc with an unconstitutional appointee, whose participation would void the Court’s actions.  He then filed a pro se amicus brief, in an en banc case, adding the constitutional ground for granting an already-pending motion to disqualify the new judge on conflict grounds.  The en banc court rejected each of his arguments – that the temporary Judge’s vacancy “happened” before the recess, that the recess at issue was “intra-” rather than “inter-” session, and that Article III (and the Circuit Court statute) required all circuit judges to be lifetime appointees.  One dissenter voted for 28 U.S.C. § 1254(2) certification to the Supreme Court, supported by another judge who also dissented based on the  “happened” issue.

Kennedy and the petitioners in the case filed a cert. petition, which was repeatedly scheduled for Court conferences, suggesting something serious afoot. And so it was!

Still unbeknownst even to many who know the case, but ignored the “Cert. den.” page, is a statement by “Justice Stevens, respecting the denial of certiorari.”  Re-emphasizing “that a denial of certiorari is not a ruling on the merits of any issue raised by the petition,” he warned: “This is a case that raises significant constitutional questions regarding the President’s intrasession appointment…, which occurred during the 11-day President’s Day break…. [There] are valid prudential concerns supporting the decision to deny certiorari. Those include the fact that the particular type of appointment in question is the ‘first such appointment of an Article III judge’ in nearly half a century…. That being said, it would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intrasession ‘recesses.’”

Senator Kennedy was pleased that his efforts had borne some fruit. But that does not end the story.

Six years later, two years after Kennedy’s death, Justice Stevens’s Five Chiefs: A Supreme Court Memoir was published.  His chapter on Chief Justice Earl Warren (pp. 84-85) says:

During that initial [recess appointee] period, and indeed until March of the following year, it is arguable that Earl Warren was not entitled to act as the first among equals.  Article II of the Constitution provides that 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.”  President Eisenhower and Attorney General Brownell relied on that provision as the basis for filling the vacancy caused by the death of Fred Vinson during a recess of the Senate.  Earl Warren and his future colleagues acquiesced in that literal reading of “all Vacancies.”

There is tension, however, between that reading of Article II and the provision in Article III that states that “Judges… shall hold their offices during good Behaviour.”  A recess appointment must expire at the end of the “next Session” of the Senate; a judge’s good behavior, one hopes, will persist somewhat longer….  [Warren later was nominated and confirmed as Chief Justice, and] sworn in for the second time.

The dissenting votes of three senators on the Judiciary Committee illustrate how a hostile Senate could have used its power to decline to confirm a nominee and thus bring Earl Warren’s tenure as chief justice to an end, notwithstanding his continuing “good Behaviour.”  Moreover, reflection on the underlying reasons for providing federal judges with life tenure – to insure their impartiality and independence – has persuaded me that the president’s power to make recess appointments does not include the power to make judicial appointments….  In my judgment, the president’s power to make recess appointments should be construed as limited to vacancies in the executive branch of the government.[Emphasis added.]  I therefore treat March 20, 1954, rather than the date of his recess appointment, a little more than six months earlier, as the date when Earl Warren became the chief justice.  Perhaps that date is merely a matter of academic interest because Warren’s contributions to the law occured after his legitimate tenure began, but in my judgment future recess appointments of judges should be avoided. 

Had Senator Kennedy lived to read Stevens’s revelation, as well as the D.C. Circuit’s Noel Canning opinion and the Supreme Court amicus filing of forty-five Republican senators, all  supporting Kennedy’s position in Evans, would he be entering the fray in the Supreme Court now?  I think so: He was proud of his hard-fought “pocket veto” victory and enthusiastic about the unfinished business in Evans, and he would have been more so knowing that neither Bush nor Obama made any further judicial recess appointments after Justice Stevens’s strong warning in Evans.

I’m unsure of what he might have done now, but the aggressive GOP senators’ brief supporting his Evans position would certainly have appealed to his sense of (delayed) justice – and tickled his sense of humor – thus provoking some response.

So, had he asked for input, here’s a first try: a note from Kennedy to Senator McConnell:


Your brief, supporting affirmance in Noel  Canning, was a pleasant surprise!

Had you told me in 2004, when I publicly advanced your positions in another recess appointment case, that we substantially agree on recess appointment law, I’d have urged you (and your caucus) to join my amicus filing supporting cert. in Evans v. Stephens.  A bi-partisan petition would probably have persuaded four Justices to support cert., especially since Justice Stevens, commenting on the cert. denial, and later more explicitly in his memoir, signaled that he’d welcome such a case, and where he’d come out on it, i.e. in favor of our positions barring recess appointment on the Evans facts.  As in Noel Canning, the Evans vacancy “happened” long before “the recess,” the appointment occurred just before the Senate re-convened after a short intra-session recess, and it occurred only because the President concluded a regular nomination would fail.

Thus, I’m confident you’d have supported my challenging the Executive, as you are now, even an Executive from your Party, as I would now even though the Executive is a Democratic friend (although Noel Canning, not implicating a lifetime judge, is somewhat weaker).

I agree the Court should, as your brief says – “consider [the recess appointment] question in its entirety, with all its antecedent and subsidiary issues on the table.…”   That surely encompasses the implications of overruling Evans, the first appellate case addressing your issues.  If Noel Canningis affirmed, Evans is necessarily overruled, meaning that the judge in Evans sat without authority for 15 months. The question in both cases: what to do, nunc pro tunc, with the matters decided in both venues during the appointees’ unconstitutional temporary tenure? (In Evans, I personally notified each Circuit judge of the clear risk of losing jurisdiction if they sat with an unconstitutional appointee, so there may be little choice in that case.)

Also, let’s talk about how we Hillies – without judicial intervention – can achieve a consensus on our immutable prerogatives, so that we can resolve future Balance of Powers issues directly with the Executive.  We should not need the Judicial Branch to muddle these issues, especially those involving some side’s “discretion.”

Can you and I, and Chuck and Pat and Harry and Orrin sit down and brainstorm these issues, perhaps with Justice Stevens (who is completely retired from judging, but apparently agrees with us) as facilitator?

See you at the gym!


Recommended Citation: James Flug, Symposium: How would Edward M. Kennedy have approached the Noel Canning case?, SCOTUSblog (Jul. 16, 2013, 5:23 PM),