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Unconstitutional

A federal appeals court ruled that several of President Obama’s so-called “recess” appointments were null and void last week. Why? Let’s first look at what a “recess” appointment is…

The President shall have Power to 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.¹

So, the President can "fill up vacancies" during the "Recess of the Senate". Not much to see here right? The President does have this power right? I was asked about this about a year ago when at least one of the appointments in question was made. The Machiavellian said “I just read the Congressional Record and there in black and white, the Senate is in pro forma session.” At the time I wondered, as I do now, just exactly what that meant, and if the distinction was important enough to matter. My conclusion was “I don't like what he's doing, but unless something extraordinary happens it's likely to stand.”

Well, apparently something extraordinary has happened, at least in part. The fight over Richard Cordray isn’t over yet, because that particular appointment wasn’t part of the ruling, but the Federal Appeals Court for the District of Columbia appears to have found their pocket copy of the Constitution.

The court case turned on whether the Senate was in recess when Mr. Obama made the appointments during a holiday break early last year. The Constitution allows a president to unilaterally install nominees to positions that normally require Senate confirmation when the Senate is in recess.

But Republican lawmakers held minutes-long meetings every few days, and lawyers for the plaintiffs argued that meant the chamber was technically in session.

While the plaintiff's case centered on those sessions, the court went a step further, declaring that Mr. Obama's appointments fell outside the bounds of his authority. It ruled that the Constitution's description of a recess refers only to the period between the roughly yearlong formal "sessions" of Congress, rather than during an effective break in proceedings. In this case, the Republicans contend Congress started a new session on Jan. 3, and Mr. Obama made the recess appointments on Jan. 4.²

We'll probably hear more of this - it will eventually be appealed to the Supreme Court after all. The Wall Street Journal's article's penultimate paragraph states...

Friday's ruling conflicts with the executive branch's position since at least 1921, when President Warren G. Harding's attorney general, Harry Daugherty, issued an opinion concluding that the president may make valid recess appointments whenever he determines "there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate."³

Of course, the attorney general can't actually define a recess. I still have my doubts about whether we’ll win this one and see our Constitution actually upheld. I like the ruling that a recess refers only to the period between the formal sessions of congress. On the other hand, the notion of a “pro forma” session of the Senate bothers me too. After all, Article 1, section 5 has this to say…

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.⁴

It seems to me then, that for the Senate to be "in session" requires a minimum of 51 Senators to be present. Otherwise there isn't the necessary “Quorum to do Business”. If the long-standing tradition of making recess appointments whenever the executive “deems the Senate to be in Recess” stands, surely a Senate that objects can retaliate quite easily. All they need do immediately upon resuming their session is adjourn it again, calling another recess for less than three days. As long as the adjournment is for less than three days, the House of Representatives doesn’t even have to agree to it. If they do this quickly enough, those recess appointments might last a grand total of a single day.

That’s the type of political bickering I’d love to see. Let the Senate and the White House play that game for a while. Eventually the people will become so disgusted with both of them that we’ll see some turnover in the compost heap we call Washington.

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David responded with:

The point of the last material quoted is simple: an adjournment "from day to day" is NOT a recess. Despite what relativist deconstructionists may say, words do matter. :-)

Perri Nelson responded with:

Of course a recess is more than an adjournment from day to day. I don't see it any other way. I merely anticipate the shenanigans we can expect to play out, as those spoiled overgrown children we refer to as politicians grab for power. Still a quorum is required to do business. The day to day adjournment refers to a smaller number, presumably the excess above a quorum. Thus if 57 Senators are present 6 could leave and the Senate would still be able to conduct business. Those six might even be dispatched to gather the remaining 42. Words do matter. With the constitution it's their plain meaning that matters. With the "constitutional scholar" in chief though we can surely expect more of the old progressive game. Parse words, twist their meaning and transform common English into "terms of art". As we saw in 2,000, the Florida Supreme Court interpreted "may" to mean "must" and "shall" to mean "may not". Who knows what the progressives on the U.S. Supreme court will decide "recess" means? Or whether Justice Roberts will play politics again? Kindergarteners and grade schoolers may be in for a shock.

David responded with:

*heh* Preschool and grade school kids discovering that "recess" means just five minutes not "doing business". . . that's a picture. ;-)

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