On Jan. 4, President Obama appointed Richard Cordray director of the new consumer protection agency without Senate approval. He did so citing his constitutional authority to unilaterally fill vacancies during a Senate recess. Later that same day, the president claimed the same prerogative to appoint three new members to the National Labor Relations Board. Outraged Republicans argue that the Senate was not in recess because a few senators held brief, pro forma sessions over the holidays to block these very appointments. The President’s lawyers contend that the Senate was effectively in recess because there was no possibility it could convene as a body to confirm the president’s appointees during that period.
The dispute has just been brought before a federal district court in Washington, D.C., and is sure to be followed by a cascade of lawsuits challenging actions taken by Cordray and the newly-constituted National Labor Relations Board. The Department of Justice will ably defend President Obama’s recess appointments in this case. Unfortunately, the litigation will almost certainly proceed without the participation of the institution with the most at stake in this fight: the Senate. And that is because Congress almost never defends its interests in court, even when the President’s lawyers seek to expand executive authority at Congress’s expense.
No one would deny the Senate’s right to join in lawsuits about the meaning of the Constitution’s Recess Appointments Clause. Like the House of Representatives, the Senate employs legal counsel whose job it is to defend Senate prerogatives in court, and both chambers of Congress have occasionally participated in litigation challenging the constitutionality of federal laws. For example, the House of Representatives is currently defending the constitutionality of the Defense of Marriage Act in federal court after the Obama Administration declined to do so. Likewise, in 1988 for instance, both chambers participated in litigation over the constitutionality of independent counsels, and the Senate defended the Line Item Veto Act when that statute came before the Supreme Court.
But these are the unusual cases. Typically, the House and Senate do not show up in court to defend their interests. So, for example, when President George W. Bush used his recess appointment power to place Judge William Pryor on the 11th Circuit Court of Appeals during a 10-day “intrasession recess,” rather than a recess between Senate sessions, the Senate did not participate in the subsequent litigation over the constitutionality of that appointment. In its opinion ultimately siding with the Bush administration, the court of appeals expressly noted that the Senate had not joined in the challenge to Judge Pryor’s recess appointment—a fact that appears to have influenced the court’s decision to accord Judge Pryor’s appointment a “presumption” of constitutionality. In other words, by failing to show up to defend its own interests, the Senate freed the court to put a thumb on the scale in favor of the president’s view that the Constitution permits intrasession recess appointments.
Unlike Congress, presidents of both parties actively promote their executive prerogatives in court. The executive branch benefits from the approximately 10,000 attorneys at the Department of Justice who regularly participate in litigation defending the President’s actions. Although the Department of Justice generally makes principled and legally sound arguments, it should not be mistaken for an impartial third party. It is headed by presidential appointees, such as Attorney General Eric Holder, who serve at the pleasure of the President, and who understandably promote executive branch interests over those of Congress. These lawyers are some of the best and brightest legal minds in the country, and their carefully vetted legal arguments are highly valued by federal judges. This is particularly true in the U.S. Supreme Court, where the Justice Department participates in more than 75 percent of the cases each term, winning 60 to 70 percent of the time and playing an influential role in the Court’s selection of cases.