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.
In contrast to the executive’s legal juggernaut, the House General Counsel’s Office consists of five lawyers; the Senate Legal Counsel only four. The Senate is further hamstrung by a statute requiring a resolution of the full Senate before it can even participate in litigation, which is difficult to obtain in partisan times. Although individual Senators and Representatives do sometimes submit friend-of-the-court briefs in cases that affect their institutions, studies show that these ad hoc efforts are ineffective, perhaps because the judges reading them know they lack the backing of the institutions as a whole.
Furthermore, members of Congress tend to prioritize their party’s interests over those of their institution, which means that nobody puts the interests of Congress first. Republicans and Democrats should unite to push back against aggressive use of the recess appointment power by presidents of both parties, but thus far each side has chosen to sacrifice the Senate’s constitutional prerogative to give its “advice and consent” to presidential appointments in favor of partisan in-fighting. So it should come as no surprise that Republican senators who supported the recess appointment of Judge Pryor now criticize President Obama’s similar use of that power, while Democratic Senators take precisely the opposite positions. The executive has taken full advantage of the resulting institutional paralysis, convincing judges to interpret the U.S. Constitution, and even Congress’s own statutes, in ways that invariably benefit the president at the expense of Congress.
In fact, the House and Senate are so ill-prepared to litigate in their own interests that they are often forced to turn to private outside counsel to do so for them, which can cause problems of its own. Last spring, after the Obama administration refused to defend the constitutionality of the Defense of Marriage Act, the U.S. House of Representatives hired King & Spalding partner Paul Clement to defend the legislation. A few weeks later King & Spalding withdrew from the case, a decision that was roundly criticized in the press and led Clement to resign from the firm in protest. (Clement has switched law firms and continues to represent the House.)
Whatever motivated King & Spalding to withdraw, the commotion that followed illustrates the obvious: Congress needs effective in-house counsel. After all, the president can rely on the thousands of lawyers at the Department of Justice without fear of conflicts of interest or client boycotts, and without racking up hundreds of thousands of dollars in lawyers’ fees. (Indeed Clement himself ably served as President George W. Bush’s Solicitor General, earning his stellar professional reputation and fighting to protect executive branch interests, at a reasonable government salary. Neither the House nor the Senate should be left scrambling for the same, very costly, representation while the President benefits from the best lawyers taxpayer money can buy.
The last 50 years have seen a vast expansion of presidential power that has been a result in part, of judicial decisions that interpret the Constitution and federal statutes in ways that favor the executive. For example, courts now regularly defer to executive branch interpretations of statutes, especially in the area of national security and foreign policy, which makes it harder for Congress to play its constitutional role in shaping policy. In an adversarial legal system such as our own, we should not be surprised that Congress has pretty consistently lost these legal battles, considering that it hardly ever shows up to argue its case in court. The solution is in Congress’s hands. Both the House and Senate could expand their legal staffs to at least a dozen lawyers, and then empower those lawyers to protect Congress’s institutional interests in litigation—starting with the Senate’s constitutional authority to give its “advice and consent” to the president’s nominees for high office. Most important, Congress could take a page out of the executive’s playbook by thinking about protecting its own long-term institutional interests instead of fretting over the short-term effect on the political party in power.
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