WASHINGTON, D.C.—Rumors whispered around Washington have it that Democrats are debating having President Barack Obama install Judge Merrick Garland on the Supreme Court by a recess appointment on Jan. 3.
All federal judges—including Supreme Court justices—are nominated by the president, but must also be confirmed with “the Advice and Consent of the Senate.” The Recess Appointments Clause, however, provides that the president acting alone can “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.”
As has been the norm for a number of years now, Congress’s annual session never terminated in November or December. Instead, the Senate holds short sessions every three days to keep that body open. The Twentieth Amendment to the Constitution specifies that at noon on Jan. 3, the 114th Congress shall expire, and the 115th Congress shall begin.
Minutes before noon on Tuesday, Congress is expected to adjourn sine die, which would end the outgoing Congress, putting both the House and Senate in recess. Then precisely at noon, the new Congress would be called into session and new members sworn in.
Some Democrats are pushing President Barack Obama to take those few fleeting moments to appoint Garland to the nation’s highest court. If the move succeeded, then for the next twelve months the U.S. Supreme Court would have a reliably liberal majority—in fact, the most liberal in all of American history. That appointment would then expire next January, at which point President Trump would be able to nominate a replacement to fill a lifetime-tenured jurist to Justice Antonin Scalia’s seat. But conservatives dread the thought of what could happen during the intervening twelve months.
President Obama tried using his recess appointment power in 2012 to force through several controversial nominees who could not get through even a Democratic-controlled Senate. His unprecedented move ended up before the Supreme Court in 2014, where the justices unanimously—without a single dissent—ruled his actions unconstitutional in NLRB v. Noel Canning.
In that decision—the first High Court decision ever to explore the meaning of the Recess Appointments Clause—the justices split between two opinions. One was an originalist opinion for the four conservative-leaning justices authored by the late Justice Scalia, whom Garland was nominated to succeed. But the majority opinion was written by Justice Stephen Breyer, for the liberal and moderate justices.
Under the controlling standard announced by the Supreme Court, Garland cannot be appointed to the Supreme Court.
Justice Breyer explained in Noel Canning “that the phrase ‘the recess’ applies to both intra-session and inter-session recesses. If a Senate recess is so short that it does not require the consent of the House [meaning less than three days], it is too short to trigger the Recess Appointments Clause. And a recess lasting less than 10 days is presumptively too short as well.”
The majority continued, “In an unusual instance, where a matter is important enough to the Senate, that body can remain in session, preventing recess appointments by refusing to take a recess.”
The Court further held “that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.”
The Court goes on to explain:
The standard we apply is consistent with the Constitution’s broad delegation of authority to the Senate to determine how and when to conduct its business. The Constitution explicitly empowers the Senate to “determine the Rules of its Proceedings.” Art. I, §5, cl. 2. And we have held that “all matters of method are open to the determination” of the Senate, as long as there is “a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained” and the rule does not “ignore constitutional constraints or violate fundamental rights.” United States v. Ballin, 114 U.S. 1, 5 (1892).
In addition, the Constitution provides the Senate with extensive control over its schedule… The Constitution thus gives the Senate wide latitude to determine whether and when to have a session, as well as how to conduct the session….
Finally, the Court concluded that “the Senate could preclude the President from making recess appointments by holding twice-a-week … sessions.”
That is precisely what the Senate has done here. The Senate has held sessions every third day (not counting Sunday), with the most recent being Friday, Dec. 30. Under Noel Canning, this means President Obama has no recess-appointment power in the moments before the new Congress begins.
Interestingly, a second way the Senate could prevent a recess appointment would be for the Senate not to adjourn at all. Per the Twentieth Amendment, at noon the previous Congress would automatically terminate by law — even if it were still in session moments before — and the new Congress would simultaneously begin. There would be no recess, and thus no opportunity for a recess appointment.
That is how the Supreme Court functions. In previous times, the Court would “rise”—meaning end its annual term—during the summer, then gavel in a new term on the first Monday of October.
But the Court no longer does so. It still stands in recess through the late summer, but never ends the official term during that time. Instead, at 10:00 a.m. on the first Monday of each October, the chief justice gavels into session the new annual term of the Court, and in so doing, the previous term ends. There is never a moment when the Court is not functioning in one term or the other.
The Senate has its own rules, which are not the same as the Supreme Court’s. But the Senate is also the ultimate judge of its own rules, and is free to work its will however it collectively sees fit. Such matters are not subject to legal challenge.
Either way, it seems very unlikely that President Obama will see a third pick to the nation’s highest court sitting on the bench before his successor takes the oath office as America’s forty-fifth president on Jan. 20.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.