Are Obama’s Recess Appointments Unconstitutional? Probably Not
While the President's recess appointments are bound to set off a political dispute with the Republicans, there does not appear to be a Constitution ban against them.
As I noted earlier today, President Obama made a series of Recess Appointments today, first appointing Richard Cordray to head the Consumer Financial Protection Bureau during a speech in Ohio, and then making three recess appointments to the National Labor Relations Board. Leaving aside the policy objections to these appointments, which are largely irrelevant if the appointments themselves are Constitutionally proper, a question has arisen about whether or not the appointments themselves are Constitutional. Essentially, the question boils down to the question of whether or not Congress is, in fact, presently in “recess” as that term is used in Constitution. If it isn’t then an argument exists that the President did not have the authority to bypass the Senate’s advise and consent functions to get these people appointed. As it turns out, it’s a close issue and the argument that the appointments are improper is far more than just a partisan attack on the President.
Let’s start at the beginning, with the Constitution itself. Article II, Section 2, Clause 3 of the Constitution says:
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
This is a modification of the normal appointments power, which requires Presidential appointments to be approved by the Senate. As I’ve noted before, it’s a power that has been used many times in American history by Presidents of both parties, and it has been used to appoint everything from an Ambassador to the United Nations to Supreme Court Justices. So, if the power has been exercised properly then that’s the end of our inquiry. We’re presented, however, with other facts that bring into question whether the Senate is really in recess at the moment.
Article I, Section 5, Clause 4 says this about adjournments in Congress:
Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.
Beginning when the Democrats took control of Congress after the 2006, the new Senate Majority Leader Harry Reid came up with a strategy designed to thwart President Bush’s ability to make recess appointments:
Senate Majority Leader Harry Reid has a little trick up his sleeve that could spell an end to President Bush‘s devilish recess appointments of controversial figures like former United Nations Ambassador John Bolton. We hear that over the long August vacation, when those types of summer hires are made, Reid will call the Senate into session just long enough to force the prez to send his nominees who need confirmation to the chamber. The talk is he will hold a quickie “pro forma” session every 10 days, tapping a local senator to run the hall. Senate workers and Republicans are miffed, but Reid is proving that he’s the new sheriff in town.
This practice quite obviously ended once Barack Obama became President. However, when the GOP took control of the House at the beginning of 2011, it came back into play in a very simple way. Even though the Republicans don’t control the Senate, the House is able to prevent both Houses from adjourning for more than three days by not consenting to it as the adjournment clause noted above requires. As was the practice during the final two years of the Bush Administration, this has resulted in the practice of what they call on Capitol Hill pro forma sessions of both Houses of Congress. If you happen to be watching C-Span on the right day, you’ll see the House (or Senate) called into session. The Clerk and all the civilian employees will be there, as will a single member of the body, or sometimes two, typically a member who represents a district in Maryland or Virginia or one who happens to be in Washington that day. The chamber will be gaveled into session, the Chaplin will say the prayer, they’ll recite the Pledge of Allegiance, and then the member who happens to present will move that the session be ended, the gavel will sound again and that will be it. It usually lasts no more than a few minutes, but under some interpretations of the law the body was “in session” that day.
The question is whether these pro forma sessions are sufficient to constitute being “in session” to obviate the President’s ability to make recess appointments. When the issue came up during the Bush Administration, but the determination was made that the White House could not, or at the very least should not, challenge the Congress on this issue. Back in 2010, though, Steven G. Bradbury and John P. Elwood, who worked in the Bush DoJ’s Office Of Legal Counsel, argued that the use of pro forma sessions to block Recess Appointments was improper:
Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not “in session for the appointment of officers.”
In a 1905 report that the Senate still considers authoritative, the Senate Judiciary Committee recognized that a “Recess of the Senate” occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot “participate as a body in making appointments.” The committee cautioned that a “recess” means “something actual, not something fictitious.” The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”
The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president’s nominations. That means the Senate remains in “recess” for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.
The president should consider calling the Senate’s bluff by exercising his recess appointment power to challenge the use of pro forma sessions. If the Senate persists, then the federal courts may need to resolve the validity of the Senate’s gambit.
Elwood expands on this argument in a post today at The Volokh Conspiracy:
One of the most important documents on the scope of the Recess Appointments Clause is the report the Senate Judiciary Committee issued on the question in the wake of President Theodore Roosevelt’s decision to make recess appointments during a truly brief gap between two sessions of Congress. That report likewise advocated a practical interpretation that focused on the ability of the Senate to perform the advise and consent function.
It was evidently intended by the framers of the Constitution that [“recess”] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments.
S. Rep. No. 58-4389, at 2 (1905).
In other words, the pro forma sessions are a sham because the Senate isn’t really conducting any business during them, and there’s no intention that any business actually get conducted. In fact, the resolution that each chamber passes to cover the pro forma sessions states that no business shall be conducted during the session. This is meant in part to assure members that something won’t be done by “unanimous consent” behind their backs while they are out of town. Additionally, relying on the Adjournments Clause, one could argue that the lack of a consent from both Houses Of Congress means that there isn’t really a recess at all. The one problem with that argument is that the Constitution says nothing about how long a recess has to be for the appointment power to be effective:
How long a ”recess” must be to be actually a recess, a question here as in the pocket veto area, is uncertain. 3 O. L. C. 311, 314 (1979). A ”recess,” however, may be merely ”constructive,” as when a regular session succeeds immediately upon a special session. It was this kind of situation that gave rise to the once famous Crum incident. See 3 W. Willoughby, op. cit., n.294, 1508-1509.
On the other side of the argument, though, its worth noting that the Obama Administration has previously taken the position before the Supreme Court that a “recess” had to be longer than the three days permitted by Article I, Section 5, Clause 4:
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?
MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board. If there are no other questions –
CHIEF JUSTICE ROBERTS: Thank you, counsel.
Additionally, when the Clinton Administration looked at this issue in 1993, its lawyers determined that the pro forma sessions procedure prevented the use of the Recess Appointment power:
The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over time, the Department of Justice has offered differing views on this question, and no settled understanding appears to exist. In 1993, however, a Department of Justice brief implied that the President may make a recess appointment during a recess of more than three days. In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. This Adjournments Clause provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ….” Arguing that the recess during which the appointment at issue in the case was made was of sufficient length, the brief stated: “If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate’s ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. … It might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant. …Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.”
It’s worth noting, of course, that the Recess Appointment clause is in many respects a relic of the era in which the Constitution was drafted and the amount of time it took to travel from one part of the country to where ever the Capitol was located would take days, if not longer depending on the time of year. From the beginning of the Republic and continuing up until the early part of the 20th Century, Congress would often be out of session for months at a time and the need to make appointments would often arise quite regularly. Arguably, the Recess Appointment clause was never intended to empower the President to put into office a nominee that the Senate had refused to confirm. However, the Constitution does not say that, nor does it define what a proper recess for the purpose of the Recess Appointment clause actually is, which means the phrase is rather open ended an open to interpretation. And that is where this entire legal analysis must come to an end, really.
This issue has not been dealt with by the Courts on many occassions. Most recently, it occurred in 2004 when President Bush used a Recess Appointment to name William J. Pryor to the 11th Circuit Court of Appeals. Lawsuits were filed challenging the appointment, but the challenge was ultimately unsuccessful:
During the presidency of George W. Bush, Democrats actively filibustered the confirmation of federal appeals court nominee William Pryor, largely because of the conservative reputation he gained while serving as the attorney general of Alabama.
A Republican-led Senate coalition fell seven votes shy of invoking cloture to end this filibuster. Following this defeat, Bush circumvented the Senate by recess appointing Pryor, during a ten-day Senate recess in February 2004. Outraged Democrats, led by Senator Ted Kennedy (D-MA), filed an amicus curiae brief in support of a lawsuit that challenged the legality of Pryor’s appointment. Kennedy asserted that it was unconstitutional to make recess appointments during the short intrasession recesses that occur during a congressional session. Eight months later, the Eleventh Circuit Court of Appeals rejected Kennedy’s challenge, ruling that the Constitution “does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause”
The Supreme Court refused to take up the appeal of the case, and the decision still stands as good law. So, as a matter of law, it does not appear that the President acted unconstitutionally at all. Whether he’ll pay a political price for it is, of course, a different question. There will no doubt be legal challenges filed over these appointments, but it seems unlikely to me that whatever Court happens to hear them is going to go any further than the 11th Circuit did just 7 years ago. For one thing, there is no hard-and-fast definition of “recess” in the Constitution. For another, the Courts simply aren’t going to involve themselves in what is ultimately a political dispute between the two other branches of government.
Perhaps it’s time to reduce the number of positions that require Senate approval say Top Cabinet positions and lifetime appointments.
It is real easy.
…If the Senate doesn’t want the Executive Branch to go end-around … don’t obstruct the process.
…Good for O, lets see more, please.
@Ron Beasley: The reason Congress wants oversight is that they know they are giving too much discretionary power to executive officers. The grant of power comes with the check of making sure they have a veto on who exercises the discretion; remember James Watts?
I think Congress needs to stop passing fuzzy feel good laws that direct some agency to make a policy decision (improve a good at a reasonable cost) and show some more testicalur veracity. The more Congress makes the policy choices, the less concern about the executive undermining them.
FWIW, I have no problem with Obama doing whatever the legislature doesn’t prevent.
Is it just my imagination, or did 47 Republican Senators acknowledge that pro-forma sessions are an act showing contempt for the constitution by acknowledging that the Senate is, in fact, in recess–contrary to the will of the House?
In addition to all of the other things that the Constitution’s framing didn’t forsee, it seems to me that a Senate composed of people whose goal may be to obstruct the workings of government for political gain ranks as another unforseen element. Have we thrown good will and the desire to serve the nation under the bus?
@ PD…
Republicans should have provided for oversight during the legislative process.
The CPFB is the law…until they can change it. Period.
Rendering Government inoperative does not constitute oversight.
@PD Shaw:
I happen to agree with you that the CFPB has an inappropriate amount of discretion and lack of Congressional oversight. The way to fix that, though, is to change the law not to blok an otherwise legitimate appointment.
@Ron Beasley: Thanks for the easy way around for the president to appoint whoever he wants, we do have a Constituion and it says the congress will have a part in running this great country, not just the president or the suppreme court. The people need to wake up to the fact that Washington is trying and has been trying for many years to over come our Constituion and the rights of the people. Look closer, the congress is still in sesssion and these appointments are ILLEGAL
Rod…
Nope. Wrong. Sorry. Obama used the Constitution to actually govern. In spite of the efforts of Republicans.
we do have a Constituion and it says the congress will have a part in running this great country
Indeed, but they have instead decided to neglect their responsibilities because they believe the duly elected president should not be permitted to fulfill his own.
I wonder, if Obama has actually read Dodd-Frank.… which ironically, would seem to have something to say to the matter.
@PD Shaw:
In general I agree with the second point. The frustrating part of this one is a split Congress with the House approving the position and then the minority party in the Senate throwing a fit about it.
As with your point from a bit back about signing statements, it would be nice if a given branch of government got its act together and presented a united front against the whims of the other branches.
It’s this procedural stuff that gets problematic fast and frustrating for anyone who isn’t interested in the inside baseball story.
@Rod: So do you support the GOP’s position that they will filibuster any nominee for this post? How does that fulfill their “advise and consent” responsibility? Their unprecedented obstructionism is arguably a much bigger problem than a few recess appointments.
Congress is certainly in at least a functional recess, so these appointments aren’t surprising to anyone. If the GOP doesn’t like them, they are free to stop the nominations by voting against them.
@Blue Shark: Close your eyes and cover your ears, let “o” make the laws and appoint people for all these different post, you want even have to VOTE, they’ll do everything to you, oh, I mean for you. Starte practicing your BOW!!!
@Eric Florack: I’m pretty sure that’s nonsense, and the Congressional Research Service agrees.
@Ron Beasley:
I guess limiting the size and scope of the government would be asking too much. Instead of make it easier for the government to run on autopilot.
@Hey Norm: Right you are, that what a Dictator does, that ‘s why our fore-fathers adopted the constition to make it hard for Dictators to get a hold on our country. If you want a Dictator, stand back and let him do what he wants.
@ Eric F…
You might let the Conspiacy Theory site you clipped that from that “authorized” does not mean the same thing as “required to”.
I’m authorized to drive my car. That does not preclude someone else from driving my car.
Do you and the wing nut sites you read really think…never mind.
@PD Shaw: I would reply to that, but what ever you said does’nt make sience.
@ Rod…
How does acting in accordance with the Constitution make anyone a dictator???
Talk about delusional.
@Just nutha ig’rant cracker: For one thing the congress is still in session and the congress has been trying to through this country under the bus for years, I think from the very start.
@Hey Norm: Dictator = Democratic President
@Hey Norm: The congress is elected by the people to make laws, not some unelected buracrate.
@ Rod…Congress wrote the law. They passed it. Obama signed it.
Buy a dog…name it Clue…then you’ll have one.
@Rod: Do you even understand what this disagreement is about?
Congress passed a law creating the CFPB. The GOP doesn’t like the CFPB, so they announced they will never confirm anyone to lead the new agency. If Congress held a vote to confirm Cordray then he would be easily confirmed with a majority of the Senate supporting him. The GOP is attempting to nullify the law rather than repeal it, and is pretending to remain in session, even though they are not there. Obama is well within his Constitutional rights to make these recess appointments.
@David M: The senate still has the democate magorite, but “o” can’t even get his people to help him out.
@Rod:
Where are those FEMA camps when we need one?
@mantis: Right, I know, we have a presidental appointment to head our treasury that can’t pay his income tax
One of the problems here is that the Republicans are so busy trying to obstruct that they have abdicated their role in governing. Not happy with oversight provisions of the CPFB? Why didn’t Republicans make that part of the legislation? The same thing with the PPACA. Instead of trying to shape the legislation to more conservative ideals Republicans tried to obstruct it. They failed, and in the process they failed the American people. David Frum, a conservative said it better than I ever will.
http://www.frumforum.com/waterloo
@Rod:
Apart from the Democratic majority in the Senate, that idea isn’t remotely accurate. Perhaps you should do some reading on the filibuster?
@Hey Norm: Not quoting from any site, I’am watching and hearing what’s being done and said. It’s not the president’s job to do what ever he wants just because the congress isn’t doing what he wants.
It’s not worth your time to respond to trolls who are play dumb for lulz, folks. Rod is a rather obvious example of this type of internet denizen.
@Rod: Been a good discustion, have a good night all.
@ Rod…
You’re either dumb or drunk.
Either way I’m done with you.
Have a nice night.
Actually, I can’t think of a better modern application of the constitutional recess appointment power than these current ones by President Obama. Assuming the founders intended for governmental positions to be filled if possible and not let the Senate calendar to keep them vacant, then this pretty much fits the bill. The
Senate calenderGOP is purposely keeping the positions vacant so the government can’t function.Remember, the GOP is filibustering the positions, not the nominees and if the founders wanted the recess appointments used to prevent indefinite vacancies, then job well done by Obama.
Just another sign that the Republicans are irrelevant. The Democrats do not even have to bother to go through the motions of following the rules.
I guess that David Axelrod and the rest of the Democratic Party brain trust knows that the Republicans will not be making any comeback and will eventually fade away. I wonder when the media will stop paying attention to the irrelevant Republicans.
Republicans beg activist judges to clean up the mess they made.
This is turning into a daily event.
Fox says Obama is “mocking” the constitution, so now guys like bithead know what they think. It ain’t complicated. When Fox says something, it instantly becomes a fact on the right.
According to reports from the Congressional Research Service, during their time in office President Ronald Reagan made 240 recess appointments, President George H. W. Bush made 77 recess appointments, President Bill Clinton made 140 recess appointments, and George W. Bush made 171. Obama’s first term has seen a paltry 28.
@Rod: I would note the 47 GOP Senators called them “recess appointments” before Obama initiated them. If the Senate isn’t in recess, why bring up the point? If they are in recess, why are they defying their partners in the House (who I would add are also not in DC at the moment.)?
If it looks like a duck…
@anjin-san:
In the first two years of the Obama Administration, the Democrats controlled the House and Senate. There was no point for recess appointments. In addition, the Obama Administration was slow to fill political appointee positions. IN the last year, the Republicans have controlled Congress enough to keep Congress in session. Compare that to the Clinton when the Republicans controlled Congress for six years.
As the U.S. becomes a one-party-state, the key to politics will be in not taking responsbility. Look for a growth in recess appointments, an increase in consent decrees, and an increase in the power of activist judges. This will allow the Democrats to govern from a more liberal position while appearing less liberal. See Colorado with the judges ruling that school spending must increase as an example of the future of governance in the U.S.
That would be true if not for the fact that one senator can completely block any non recess appointment. So you’re either ignorant of how government works or you’re playing partisan games.
Of course it’s unconstitutional, and not because of the pro forma session. It’s unconstitutional because a recess appointment may only be used to fill a vacancy that opens up while the Senate is in recess. For more, see http://www.danjacoby.com/politics/columns/writing/87_recess_appointments.htm
@matt: Or both.
@Dan Jacoby: That hasn’t been the practice or understanding since the 1820s, so it seems pretty unlikely that argument would get very far.
@Hey Norm: Here’s the thing Norm, the Republicans did add to the legislation, the provision that requires Obama to get his appointee to that board, approved by the Senate. So he signed the law that requires him to have that particular appointment approved by the Senate. Apparently he doesn’t read the laws before he signs them. Secondly, were you out on websites talking about the Democrats obstructionism when they did the same thing to George W. Bush, because as the article states, Harry Reid created this ridiculous game to stop Bush from making recess appointments. Or are you just a partisan hack who has bought into all the crap and hype so you just troll around looking to bash Republicans any chance you get? My guess is you’re just a troll.
Also let’s not forget that Obama did not even present the NLRB appointees to the Senate until December 15th, which is why the Republicans asked him not to use recess appointments. So as of today the Senate has only had, at most 20 days to look those appointees and vet them. However, don’t forget that they were on Christmas recess during that time as well. So he is not at all giving them proper time to vet appointees. I don’t see the Democrats making any attempts to vote on these appointees and Republicans blocking it. Everyone just assumes the Republicans won’t approve of his appointees, Obama included. The Republican House has no part to play in this, I’ve seen alot of derogatory remarks for them for some reason.
@BRohm: The CFPB head will have the same power whether appointed during a recess or approved by the Senate. That provision is meaningless boilerplate.
And do you actually expect anyone to do anything other than laugh at the idea the GOP wasn’t going to obstruct the latest appointments to the NLRB? The GOP doesn’t deserve any consideration here, until they start showing they are capable of taking their responsibilities seriously and end their unprecedented obstruction of virtually everything.
As to your point the GOP House has no part to play in this…you do know who causing the Senate to keep doing the pro-forma sessions and pretending to stay in session, don’t you? The GOP House.
Note to future Republican presidents: you now have the power to declare when Congress is in recess or not, for your own convenience.
Note to Arizona: you might want to cite this in your court arguments on your immigration law; “we had to act because they refused to do their job” is now an official Obama administration policy.
Those who are upset with what the President has done should contact their Congressional representatives and ask them to begin drafting articles of impeachment…after all, what he did was “unconstitutional”…
Nice work, DM. A nice change from the Randian influenced %&*#%()I have seen here before.
Tom Maguire at Just One Minute blog outlines how the Dodd-Frank Act expressly calls for the confirmation of Director of the Bureau.
…Section 1066 of Dodd-Frank provides that the Secretary of the Treasury is authorized to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.” It turns out that section 1011 is a defined term which provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”
Whether Obama is right on the Constitution is moot, the statue clearly does not mention a recess appointment.
First appointments need approvel . This tit for tat has been going on for the last 3 presidents. Trying to play the legal game to get the upper hand is what you did in the sand box. This back and fourth has been going on so long no one knows were it started. We as a nation have to grow up and act, including you and me,like we are the nation we claim to be.
@Neo: As mentioned earlier, that is meaningless boilerplate text commonly included in bills, it doesn’t have any real significance.
@David M:
Much like, say, Obama’s oath to “preserve, protect, and defend the Constitution?” Yes, I can see that.
david m…. a salient point you may have missed…… congress is not in recess. so are we a nation of laws?
@Doug Mataconis: Not a legitimate appointment though is it?
Neither house of congress may adjourn for longer than three days without the consent of the other house. The house of representatives refused to consent to adjournment expressly for the purpose of denying the executive the ability to use recess power.
This is a decision that the HOUSE made as is their right under the constitution that provides seperation of powers and checks and balances. The executive branch is checked (prevented from taking action) by the fact that the prevailing law says the senate is not in recess.
The reason the constitution did not define this further was to prevent a hard and fast timeline on either chamber of congress from adopting and modifying their parlimentary rules of conducting business. The framers wanted to make sure that there were no numerical values (notice there is only one place in the constitution that defines a value based definition of the law? Amendment VII) The intent was to make sure that any of the three branches could forestall the other branches from acting unilaterally (Obama is doing just that) in violation of the liberties of the people. Hamilton, Jefferson, and Madison in the federalist papers and in private writings have repeatedly shown that the one thing that they considered an evil above all was that action might be taken by a branch of the government that would stifle the will of the people. Each time that the constitution remains mute on certain items (length of time of a chamber being in recess) it is usually to allow the Judicial Branch interpretive leeway to rescind bad or overturn unconstitutional decisions by either the legislature or the executive with the idea that the judicial branch would always interpet in favor of the contract and not necessarily in favor of the legislative or executive branches. The upshot being that there is a pitched battle between ALL branches (requiring a battle on two fronts by any particular branch) to create or support or implement legislation that may not be the wish of the people. The three branches are Adversarial in nature.
The argument that one or another branch should abandon its direction because another branch wishes to go in a different direction for the sake of duty to get something done is erroneous, false, and corrupt. It is in fact the exact oposite of this. The founders one agreeable point was that disagreement and debate rather than abrupt unconsidered action was the way to assure an unfetterd individual was able to decide for himself what should be and what should not. For it is the people that are the best repository for the protection of liberty.
So having a way to thwart an over zealous executive from reaching bad appointments, ones that have been Denied to him previously in earlier session, because either the appointees are unfit or the agency to which the nominees have been appointed themselves weild power overbroadly, is the best way to assure that the voices of the people is heard and and obeyed rather than the desires of the leader to effect change.
I still can’t get a handle on how a crucial aspect of the ongoing issue on the constitutionality of recess appointments is being totally ignored — by the press, by the government, by legal experts, and in feedback from the public. The arguments always begin with Art II Sec 2 and then proceed to what is meant by a “recess”. While that may be relevant with respect to certain appointments, it really has little bearing on the current situation.
From Art II Sec 2:
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate”, … [emphasis added].
Now compare the former to the following clause:
The President shall have Power to fill up all Vacancies during the Recess of the Senate.
Note that this new clause, with the emphasized words deleted, is exactly how the original clause is being interpreted, yet these are two different clauses, with two different meanings. Did the Framers throw in those extra words haphazardly? I think not. A “vacancy” is an “event” that happens at some point in time. The position constituting the vacancy becomes unfilled for some reason (death, resignation, forced termination, incapacity, etc.). Vacancies which do NOT happen during the recess of the Senate are therefore NOT eligible for recess appointments. Such vacancies have already had the opportunity for senatorial consideration. Vacancies which occur while the Senate is in recess do not have this same opportunity. That is the point of providing for recess appointments. While the author briefly alludes to Hamilton’s Federalist #67, the pertinent language is cited below for confirmation of this interpretation.
“…The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”… [caps are Hamilton’s]
So, whether the Senate is now in recess, or has been in recess for any amount of time over the last month or so, is irrelevant. All of the current crop of positions being proposed for recess appointments are pre-existing vacancies which were vacant when the Senate was last assembled. They are thus constitutionally ineligible for recess appointments. I would add that the upshot of this line of reasoning is that there have probably been no legitimate recess appointments made, by either party, since the 19th century, when Congress actually recessed for extended periods.
Who decides when the Senate is in recess? Does the Senate decide when it is in recess, or does the President decide? The core principle is separation of powers. The President must respect the integrity of the other branches of government, whether he thinks they are gimmicky or not.
If this precedent stands, it might be very hard to get that genie back in the bottle.