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?

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The recess appointment case currently before the Supreme Court takes matters one step further. Instead of simply blocking participation by the Senate counsel, Senate Republicans banded together to defend Senate prerogatives by limiting the scope of presidential recess appointments. Ironically, these same Senate Republicans set in motion the very dispute now before the court. Following a practice utilized by Senate Democrats during the George W. Bush administration, Senate Republicans sought to block Obama recess appointments to the National Labor Relations Board and other government agencies by making use of so-called pro forma sessions—minutelong sessions where a single lawmaker would periodically gavel the Senate into session during a break. In January 2012, President Obama, claiming that the Senate was in recess during one of these pro forma sessions, made three recess appointments to the NLRB. For the Obama administration, these pro forma sessions were intended to disrupt the constitutional balance of powers between Senate and president; Senate Republicans, instead, argue that the president is simply seeking to “evade the advice and consent protocol at his pleasure.”

That the justices will hear only from the Senate minority and not from the Senate itself is truly unfortunate. The case, of course, has extremely serious implications for the balance of power between the president and Senate. Given the recent fights over the appointments process and the use of the nuclear option, the Supreme Court’s understanding of the real-world dynamic between the Senate and president on recess appointments might impact its final ruling in the case. The fact that the Supreme Court will hear only from the Senate minority could shape the court’s understanding of this dynamic. 

And even if that is not the case, it is certainly true that the justices will not know whether the Senate itself thought it was in session at the time of these appointments. When the case was argued in the U.S. Court of Appeals for the District of Columbia Circuit, circuit judge and former Senate counsel Thomas Griffith lamented the fact that Senate counsel did not participate for this very reason. As Griffith put it at the time, “How do we know what the Senate’s view is about the meaning of recess in terms of the recess appointments clause? We don’t.”

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When it comes to the House, majority rules. The House counsel essentially works for the speaker of the House. The so-called Bipartisan Legal Advisory Group that authorizes House counsel action is largely a sham. In the DOMA case, for example, BLAG divided along strictly partisan lines to authorize House intervention in the case. Likewise, BLAG divided along partisan lines in 2000 when defending a federal statute overturning Miranda v. Arizona. 

In both cases, Democratic members filed competing briefs to make clear that the House BLAG was both wrong on the merits and spoke only for the majority party. BLAG’s own filings likewise acknowledged that it represented only the views of the majority party, stating that although it “seeks consensus whenever possible, it functions on a majoritarian basis, like the institution it represents.”

Differences between today’s House and Senate are also revealed in the willingness for the House, but not the Senate, to go to court to assert its institutional prerogatives against the executive. With House rules allowing a simple majority to invoke both the contempt power and the filing of lawsuits by the House counsel, the House is likely to be a vigorous proponent for congressional prerogatives when the opposition party controls the White House. In an ongoing dispute between the House and Attorney General Eric Holder about the “Fast and Furious” gun-running operation, the Republican majority is seeking judicial enforcement of a subpoena against the attorney general. During the George W. Bush administration, Democrats were in the majority and similarly sought judicial enforcement of subpoenas in a 2007 dispute over the firing of U.S. attorneys.

Party polarization and House-Senate differences are now a fact of life and, apparently, so is the strange spectacle of the Supreme Court hearing oral arguments from the House majority in the DOMA case and the Senate minority in the recess appointment case. Indeed, the bipartisanship requirement that now makes it impossible for the Senate counsel to participate in litigation that divides the parties is statutorily mandated, from a time when we could imagine a Senate that could sometimes agree. 

It is even more urgent, therefore, that the justices hearing the recess appointments case recognize that they are only hearing from the Senate minority —not the House, not the Senate, and certainly not the entire Congress. 

Neal Devins is a professor of law and government at the College of William and Mary.

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