1. Lecture 11 The Executive
Part 3: Power to Appoint

2. This lecture Appointment Power Which offices? Recess appointments
Pages

3. The Appointment Power Article II, Section 2
Some positions require Senate confirmation
Principal positions
Federal judges
Cabinet members
Ambassadors
Some offices are created by law
Congress may allow their appointments without confirmation for “inferior” positions
Recess appointments
The President may fill vacancies when the Senate is in recess
The appointment expires at the end of the next session
It is moot if the Senate then confirms the person

4. Morrison v. Olson (1988) Morrison v. Olson (1988) Background
In 1978, the position of Independent Counsel was created
To investigate and prosecute high level government officials- make them independent
Chosen by a group of three federal judges appointed by the Chief Justice for two year terms
It was the Attorney General that would determine when one would trigger appointment of an Independent Counsel
They could be removed by the Attorney General for cause or disability
Subject to review from the district court
Their tenure ended when they said they were finished

5. Morrison v. Olson- II More Background
1982- two subcommittees in the House investigated the EPA and Justice Department
There was a dispute on the administration turning over documents
The House Judiciary Committee then began to investigate
They found misconduct of the Assistant Attorney General Ted Olson and other officials in the Justice Department
The committee asked the Attorney General for an independent counsel to be appointed
One was appointed- Alexia Morrison
Olson challenged the validity of the Independent Counsel law
They refused to cooperate on this ground

6. Morrison v. Olson- III Arguments For Morrison For Olson
Special prosecutors can be considered inferior officers
It is irrelevant that they are not subordinate to others
Nothing prohibits cross branch appointments
Congress has this discretion
For Olson
This act violates the appointment clause
They are not subordinate, thus not inferior- not even the President can remove them
The act violates Article II in that executive power is vested solely in the Presidency

7. Morrison v. Olson- IV
Question: Is the Independent Counsel law constitutional?
Chief Justice Rehnquist writes for a 7-1 Court
Officers are either principal or inferior
If they are inferior, Congress can allow appoint by the President alone, heads of departments or the Judiciary
There was little guidance from the framers on the dividing line
They find it she is an inferior officer
She is subject to removal by an executive officer (AG)
Her role is to act only in certain limited duties
No policy role
Her jurisdiction is limited

8. Morrison v. Olson- V More from Rehnquist
Inter-branch appointments allowed?
The language of Article II seems to place no limits on inter-branch appointments
Nothing suggested the framers were opposed
However, the power is not unlimited
There must be some congruence between the functions normally performed by the Court and the performance of their duty to appoint
After all, a court would generally appoint a special prosecutor if the prosecutor steps aside
Article III question
Judicial power limited to cases and controversies
The act only gives the panel the authority to choose the person, and little else

9. Morrison v. Olson- VI Scalia’s dissent
He thinks the real issue is separation of powers
All Executive power, not some
Two questions
Is the conduct of a criminal investigation the exercise purely of the executive?
Does the statute deprive the President of exclusive control over that power?
Scalia answers both with yes, so it is vesting executive power outside the executive
Prosecution of crimes against the United States is an executive function
The President cannot fire the IC, but the AG can- not sufficient
Separation of powers implies retaliation by other branches for violations by another

10. More on the Independent Counsel
It expires in 1992
Reauthorized in 1994
Used to appoint Kenneth Starr to investigate Bill Clinton
It expired again for good in 1998
Generally the way around this now
Case assigned to a particular or different U.S. Attorney Office
Edmond v. United States (1997)
Can the Secretary of Transportation appoint members of the Coast Guard Criminal Court of Appeals? Yes
Work at directed and supervised by someone subject to nomination by the President and confirmation by the Senate

11. Recess Appointments Article II, Section 2
Recess appointments allowed for the President while the Senate is away
They expire at the end of the Senate’s term
Back in the time of the founding, the Senate did not meet as regularly as now
The goal was to keep officers in place to run the government
Bush had more of the past three Presidents
Have also been used for judicial appointments- Stewart, Brennan
Hamilton saw it is a supplement to the appointment power
Not a replacement or way to get around it

12. National Labor Relations Board v. Noel Canning (2014)
The Noel Canning Company had refused to executive a collective bargaining agreement with its union as found by the NRLB
The company set the decision was invalid because 3 of the 5 members were improperly appointed
Republicans had been blocking any Obama appointments to the NRLB to deny it a quorum to decide anything by a filibuster
President Obama appointed the three members in question by recess appointment
The Senate had tried to block any recess appointments by holding a “pro forma” session on Tuesday and Friday while it was away
These appointments were made during a three day recess
After the nuclear option, these appointments were reaffirmed by the Senate

13. National Labor Relations Board v. Noel Canning- II
Questions:
Does a recess include an intra-session?
Does it refer only to vacancies that occur during the recess?
Was the Senate in session or recess during the pro forma sessions?
Arguments
For the NLRB
Presidents have made lots of intra-sessions appointments in the past
Presidents have made lots of recess appointments for offices that did not become vacant during the recess
The Senate in recess when for 20 days, it holds only pro forma sessions where not business is conducted

14. National Labor Relations Board v. Noel Canning- III
Arguments for Noel Canning
Recess is limited to between sessions
Only applies to vacancies that occur during a recess
Pro forma sessions are actual sessions
Unanimous decision by the Court, by Breyer
The recess appointment power is the exception to confirmation requirement
It is a subsidiary power, not a primary one
There is a great deal of history with the recess appointment
Recess includes intra and inter session breaks
But three days is too short
They seem to settle on a ten day rule
Possibly a national catastrophe would be an exception if the Senate was unavailable

15. National Labor Relations Board v. Noel Canning- IV
More from Breyer
Recess appointments were not meant for the President to find a way around Senate confirmation
But the vacancy does not have to occur during a recess
Pro forma sessions count as sessions, not recesses
Rely on the Senate to say when it is session or not
Article 1, Section 5, Clause 2
The Senate could conduct business during these sessions

16. National Labor Relations Board v. Noel Canning- V
Scalia would go much further
He was joined by Roberts, Thomas and Alito
This was a concurrence in the judgment not the logic to get there
Recess should only be the gap between sessions
He does not like their determination of 10 days
He says the Senate never thought intra-session appointments were constitutional and unheard of in the first 130 years
Majority ignores that the confirmation process was to be a check on the executive
The President can go around an unfavorable vote on a nominee
History makes little difference here

17. Next lecture We will move on to The Power to Remove
Executive Privilege