The Senate’s Lawyer Doesn’t Participate in Senate-Related Litigation Anymore. Here’s Why.

The law, lawyers, and the court.
Jan. 13 2014 5:55 PM

Counsel Rests

Why did Mitch McConnell—not the Senate’s lawyer—participate in Monday’s recess appointments case at the Supreme Court?

US Capitol Building
Snow falls on a statue outside the Capitol in Washington in 2013.

Photo by Jim Watson/Getty Images

At oral arguments Monday on President Obama’s recess appointment power, Senate Republicans locked horns with Obama’s Department of Justice. The Office of Senate Legal Counsel is not participating in the suit, even though it involves the Senate directly. Instead, the justices agreed to a request by Senate Minority Leader Mitch McConnell to participate in the oral argument. 

Last year, it was House Republicans locking horns with the Obama Justice Department. In defending the constitutionality of the Defense of Marriage Act before the Supreme Court, the House Bipartisan Legal Advisory Group actually spoke only for House Republicans. Indeed, 132 House Democrats filed an amicus brief in that appeal, arguing both that DOMA was unconstitutional and that the House counsel did not “speak for a unanimous House on this issue.”

In Monday’s recess appointment case, why would the Senate’s own lawyer sit on his hands while the minority leader purports to speak for the Senate? And why were House Republicans Congress’s only voice in oral arguments in the DOMA case? The answer lies in the differences in the ways the House and Senate can participate in litigation—differences exacerbated by the polarization of Democrats and Republicans in both the House and Senate.

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The Office of Senate Legal Counsel can only participate in litigation with broad bipartisan support. By statute, counsel representation of the Senate requires two-thirds support of a leadership group made up of four members of the majority party and three members of the minority party. This supermajority requirement made perfect sense back when the office was created in 1978.  Reflecting both Senate norms favoring bipartisanship and Senate desires to defend its institutional prerogatives in the wake of Watergate, the Office of Senate Legal Counsel was created to speak the Senate’s collective voice in disputes with the executive branch.

Throughout the 1980s, the Office of Senate Legal Counsel defended the constitutionality of federal statutes in several high-profile disputes with the executive branch. In cases involving the constitutionality of the legislative veto, deficit-reduction legislation, independent counsel investigations of high-ranking executive officials, and race preferences in broadcasting, the Senate counsel defended Congress’ institutional prerogatives before the Supreme Court. In some of these cases, Republican Ronald Reagan was president, and the Senate majority was also Republican. In other words, 1980s Republicans were willing to stand up to a Republican president to advance the institutional interests of the Senate.

The recess appointment appeal being heard Monday is precisely the type of case Congress had in mind when it created the Office of Senate Legal Counsel. The case concerns the president’s power to fill vacancies in the executive or judicial branches, when the Senate is “in recess”—and thus unable to hold a confirmation hearing. The president, not surprisingly, has a broad view of what constitutes a Senate recess—to curb restraints on his power to make recess appointments. In the abstract, the Senate would be expected to have a somewhat narrower view of what constitutes a recess—so as to expand its own role in confirmations. But in today’s polarized Congress, Democrats and Republicans did not come together to assert a shared institutional view of what might constitute a Senate recess. In particular, whereas Senate Republicans are eager to assert their institutional prerogatives against the president, Senate Democrats seem altogether unwilling to challenge Obama’s efforts to use recess appointments to get his nominees through the Senate.

The inability of Senate Republicans and Democrats to come together is not completely new. Since the 1995 Republican takeover of Congress, the Senate counsel has not participated in a single case in which the Department of Justice has refused to defend a federal statute. Indeed, I am aware of no recent Senate–executive branch dispute in which the Senate counsel has gone to court to assert Senate prerogatives. Instead, reflecting ever-increasing party polarization in Congress, the Senate counsel has been absolutely unable to speak with a bipartisan voice in disputes with the executive. In a 1993 lawsuit over a recess appointment by then–lame duck President George H.W. Bush, minority party Senate Republicans blocked the filing of a brief that would have defended the Senate’s confirmation power.

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