mdsinclair

Last Monday, we discussed this as a possible topic for the next meeting on 25 November. As it happens, a couple of recent E-Mail messages from Richard Cohen addressed this topic. Rick is a retired New Jersey state appellate court judge who now lives on MDI and has led numerous Acadia Senior College classes on Contitutional issues.

Rick’s most recent E-Mail messages dealt with the legal basis for recess appointments.

Here’s the text of the first of those E-Mail messages:

Dear All,         

Two short ones today. [I’ve omitted the first part of the E-Mail message, which deals with an unrelated issue.]

The other quickie for today is the matter of recess appointments. Ordinarily the scheduling of legislative recesses is up to the houses of Congress (possibly their favorite subject), and rarely presents problems resulting from disagreements. The media speculate, probably accurately, that the new administration is going to try to seat its controversial appointees without hazarding the Senate’s advice and consent process, by making recess appointments.  Recess appointments are good until the end of the current congressional session. So, if Trump makes recess appointments on January 20, 2025, they are good until January 3, 2027.         

Aticle I, Sec. 5, of the Constitution says, “Neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, .   .   .”  I’m not sure what evil that provision was intended to avoid, but both houses have adopted the dodge of leaving town for more than three days, leaving a junior member to show up in the Capitol in the morning to open a work day, all by himself, noting a lack of a forum, moving to adjourn for two days, and presumably voting for his own motion.  All this has been taken traditionally to avoid the Sec. 5 recess provision.

But wait, there’s more!  Article II, Sec. 3, describes a few of the powers of the president.  It includes the following unfamiliar provision: “he may, on extraordinary occasions, convene both houses, or either of them, and, in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper;  .  .  .” If these two clauses are connected, then they apply only to an extraordinary session called by the president.  However, I am afraid this word salad may be held to cover two independent subjects, and will be read to say that, if one of the houses wants to adjourn and the other does not, the president can adjourn them both for as long as he “thinks proper”. The GOP will control both houses after January 3, so, if one of them decides to adjourn and the other says no (and that can certainly be arranged in the offices of Project 2025), Trump will, on January 20, adjourn them both “sine die”, and then appoint everybody.

I haven’t yet done any real study of this provision, either textually or historically, but neither has anyone else I have access electronic to. So keep tuned. This could be major litigation that lands in SCOTUS. It could be a “political question” that the Court won’t touch with a long stick. It could result in a presidential clown car with padded walls.                          

Rick

And here’s a follow-up from Rick:

After sending the email a few minutes ago, I found the following:     

https://constitution.congress.gov/browse/essay/artII-S2-C3-1/ALDE_00001144/
It does not sound promising at all.       
                          Rick

Of course, Rick’s discussion doesn’t address the politics affecting the Senate’s decision about whether to allow recess appointments, or whether Trump will appoint some of his nominees as “acting”, in order to avoid the political uncertainties of the Senate confirmation process and the political and legal uncertainties of recess appointments. “Acting” appointments, however, raise other uncertainties, including the extent of an acting appointee’s decision-making authority.

Unfortunately, I won’t be able to join next Monday’s meeting since I have a long-standing prior committment.

One of the topics floated at the end of last Monday’s meeting was Biden’s proposals for reform of the Supreme Court, including a Constitutional amendment to limit justices’ terms to 18 years and staggering appointments so that a president would be able to nominate one justice every two years. Biden has also proposed that Congress adopt an enforceable code of conduct for the Court. The White House describes these proposals as follows:

2. Term Limits for Supreme Court Justices: Congress approved term limits for the Presidency over 75 years ago, and President Biden believes they should do the same for the Supreme Court. The United States is the only major constitutional democracy that gives lifetime seats to its high court Justices. Term limits would help ensure that the Court’s membership changes with some regularity; make timing for Court nominations more predictable and less arbitrary; and reduce the chance that any single Presidency imposes undue influence for generations to come. President Biden supports a system in which the President would appoint a Justice every two years to spend eighteen years in active service on the Supreme Court.
3. Binding Code of Conduct for the Supreme Court: President Biden believes that Congress should pass binding, enforceable conduct and ethics rules that require Justices to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest. Supreme Court Justices should not be exempt from the enforceable code of conduct that applies to every other federal judge.

White House Fact Sheet, “President Biden Announces Bold Plan to Reform the Supreme Court and Ensure No President Is Above the Law”, 29 July. I’ve omitted item 1 from that Fact Sheet, which describes the proposed Constitutional amendment to effectively overrule the Court’s recent decision regarding presidential immunity from prosecution since that’s not really a Supreme Court reform proposal.

Given the fact that Democrats have held the White House for 12 of the last 20 years, if those proposed Supreme Court reforms had been in effect since 2004 Democrats (Obama and Biden) would have had the chance to nominate six justices, while Republicans (Bush II and Trump) would have been able to nominate three justices. Assuming the Democrats would have nominated more-or-less left-leaning justices and assuming the Senate would have approved those nominations. the make-up of the Supreme Court would have flipped from 6-3 conservative to 6-3 liberal, likely changing the outcome of some significant Constitutional issues, including the right to an abortion (Roe v. Wade would have survived) and presidential immunity would have been unchanged (Trump v. US). I imagine the Chevron doctrine would also have survived (Loper Bright Enterprises v. Raimondo), and the Court would not have invented the “major questions” doctrine (West Virginia v. EPA).

Here are links to a couple of recent opinion columns and an article that appeared in The New York Times related to this topic :

David Firestone, “Biden is Right: End Lifetime Tenure on the Supreme Court” (https://www.nytimes.com/interactive/2024/07/29/us/politics/supreme-court-biden-term-limits.html?unlocked_article_code=1._U0.XeNA.N6sTaQn3JnWQ&smid=url-share)

Erwin Chemerinsky, The Election Is Crucial to the Supreme Court’s Future. Biden’s Reform Plans Are Not.” (https://www.nytimes.com/2024/07/30/opinion/biden-supreme-court-limits.html?unlocked_article_code=1._U0.L-PB.dwuAOyrE6YaH&smid=url-share)

Elena Shao, “How the Current Supreme Court Would Look Under Biden’s Term-Limit Plan”(https://www.nytimes.com/2024/07/30/opinion/biden-supreme-court-limits.html?unlocked_article_code=1._U0.L-PB.dwuAOyrE6YaH&smid=url-share)

You should be able to read all of these even if you don’t have a subscription to The Times.

hRepublican opposition to the Biden proposals has been along the following lines:

“Republicans slammed the push for radical Supreme Court reforms proposed by President Biden and Vice President Kamala Harris on Monday as “outrageous” and a “threat to Democracy,” comparing the effort to judicial branch overhauls that led to the rise of a socialist dictatorship in Venezuela.”

Rep. Maria Elvira Salazar (R-Fla.), quoted in Victor Nava, “Republicans slam Biden-Harris Supreme Court reforms: ‘Threat to democracy’”, New York Post, 29 July.

“The top congressional Republican, House of Representatives Speaker Mike Johnson, called Biden’s proposals an effort to “delegitimize the court,” and said the changes would not be considered by the chamber, which his party controls.”

Quoted in Jeff Mason and Andrea Shalal, “Biden proposes term limits, code of conduct to rein in ‘extreme’ Supreme Court”, Reuters, 29 July.

I refer you to the article by Elena Shao, above, for the real reason Republicans oppose the proposals.

I haven’t posted anything explaining or criticizing the Biden proposal that Congress adopt an enforceable code of ethics for the Supreme Court, beyond the description of that proposal in the White House Fact Sheet. If I find something useful about that, I’ll post it later.