The New Republic

Pretty slick.

- basman

January 6, 2012 at 1:04am

Pretty stupid. BHO should have made Job 1 the elimination of the Senate filibuster rule (which was imposed by a simple majority over a century ago) in Febraury 2009 when Dems had their largest Senate majority since the mid-60's. Had he done so, and acted more boldly in many other matters, he would not be facing probable-- maybe near-certain- defeat next November.

- drofnats1

January 6, 2012 at 2:06am

Of course, the historical reason for the recess appointments provision in the constitution no longer exists, which is why we now have such strained interpretations of it. To put it in recent context, however, a few oddities. Eisenhower made recess appointments of both Justice Brennan and Chief Justice Warren. Never the twain shall meet. GWB made 171 recess appointments. Obama has made only about 30. Any fool can criticize, condemn and complain and most fools do. I have to add the irony of the moment: the NYT is reporting this morning that Senator Menendez of New Jersey, a Democrat, is blocking Obama's appointment of Patty Schwartz to the circuit court. I suppose Menendez may not be signing the proposed letter. Et tu, Brute?

- rayward

January 6, 2012 at 7:51am

01/06/2012 - 2:06am EDT | drofnats1 The point here is present and prospective; your criticism is of the retrospective.

- basman

January 6, 2012 at 9:15am

I am very unimpressed with this, to put it mildly. If the recess appointment is unconstitutional, it cannot be rescued by an extra-constitutional, extra-legal process, a letter, even if signed by God himself, that is not an act of the Senate. Conversely, the use of such a process is tantamount to admitting that the appointment is not valid. This is a drop-dead loser. It impeaches what has occurred without giving it any cognizable constitutional support. Not elegant. Not clever. Silly.

- roidubouloi

January 6, 2012 at 9:26am

Very stupid. One of the reasons the Republicans are doing this, was that after Bush-II had appointed 99% of HIS appointees in 2005, and had them approved, there were 6 judicial nominees who were just beyond the pale. Clearly partisan, the Senate turned them down. Bush reappointed them. Again and again. The Republicans threatened the "Nuclear Option" to over-ride the filibuster. The famous "Gang Of 14" was formed to resolve it. 2005 wasn't that long ago, after all. If all Bush had to do was get a LETTER from the majority to say "Sure, we're in recess, appoint them", then you'd be enabling majority over-reach again. Instead, Obama is carefully trying to stop MINORITY over-reach without destroying the purpose of the filibuster. I hope it works.

- AllanL5

January 6, 2012 at 9:40am

I don't think the letter is even necessary as this is likely a hands down winner for Obama, for one, as pointed out who has standing to sue? The Democratic majority in the Senate won't, and even if an outside party launched a suit their dubious standing would necessitate it to go all the way to the Supreme Court and in an election year absent a complaint from the whole Senate itself I can't see them taking the case. And Republicans most likely don't even want to win because it would give the Democrats a clear advantage in what Republicans believe will be their own White House. And Republicans are nuts if they think they can win the argument they reserve the right to do not do their jobs, which is advise and consent and the right to prevent the President from doing his job, which is executing lawfully mandated orders. Hooray, we won.

- blackton

January 6, 2012 at 10:27am

Me, on the question what is and is not a recess appointment. http://www.tnr.com/blog/timothy-noah/99229/cordrays-recess-appointment-sure-doesnt-look-constitutional-me I didn't recall Bush reappointing people the Senate had rejected, as aaron said. But if that is the precedent, I wish Obama would fill every vacant office at the next Senate adjournment of more than three days, leaving aside those that the Senate is diligently considering as a matter of comity. If they vote and reject, comity likewise requires that that person not be appointed as a recess appointment.

- roidubouloi

January 6, 2012 at 10:40am

Great way to end the filibuster is to force the Senate to vote and reject after a decent interval, or just appoint anyway when the Senate adjourns for more than three days. Majority rules.

- roidubouloi

January 6, 2012 at 10:41am

Very stupid to maintain the filibuster. You think maintaining it will save Dem policies when they in a Senate minority of 49 or less in 2013?? Good Luck. Repubs will bust the filibuster the minute they need to pass some legislation-- either by the nuclear option or by getting BHO (if still Prez) and the Dems to agree to compromise and ignore the filibuster. Dems need to produce leaders that have smarts, but also have the intestinal fortitude of Repubs. Ya'll keep giving more and more reasons why the best thing to happen to Dems is for BHO to lose in 2012-- as well as Dems to lose control the House and Senate (a near-certain event, rarely mentioned by editors or bloggers of tnr).. That'll really produce some serious reform of the Dems. The butt-kicking Dems got in 2010 has not been sufficient to produce a party or leaders (other than Pelosi) consistently, strongly and effectively supporting Progressive/Liberal policies in true opposition to the Repubs. The Dems and the US are in big trouble until that happens-- the sooner the better. And it won't happen if BHO and a fair number of Blue Dog Senators are re-elected. The House is less of a problem. You dislike this?? So did most Brits dislike critiques of Chamberlain and his compromises to produce Peace in Our Time. How did that work out? You think refs to Europe and WWII are out of bounds and Repubs don't have totalitarian tendencies?? I'm more concerned about that danger than most of you, but kindly maintain a minimum of consistency and then accept that a BHO loss is just part of the political give and take in the US ---- and you and/or your daughters can get safe and legal birth control and abortions, and the US can get decent health care for its citizens, and financial institutions can be regulated to reduce the probability of massive bank failure and environmental pollutants can be controlled----- if and only if Dems lead by a Progressive once again effectively control the political process. In my lifetime, I've seen that happen twice (FDR and LBJ), albeit the latter was destroyed by his decisions on Vietnam. [The consequences of BHO's decisions on Afghanistan are not yet obvious, but stand a good chance to be a devastating.] I believe various polls show that Progressive/Liberal policies are actually supported by a majority of the electorate. Leaders who advocate such paradigm-changing policies will not be produced for perhaps a generation without a BHO loss and a deepening of the current economic crisis (a near-certainty that will destroy BHO and give the Repubs a Dem Hoover to run against for a generation). Dems need an election win by a paradigm-changing President-- It happened for better with FDR and for worse with Reagan. It can happen again, but not with BHO.

- drofnats1

January 6, 2012 at 11:19am

The Supreme Court might well just punt, i.e., determine that this is a "political question," and decline to rule. Dan

- dbuck1

January 6, 2012 at 11:36am

As a Republican, I must say this is an absolutely terrific idea; and I would here like to exercise the high honor of penning the first draft of said letter. "Dear Great Leader, If in the course of human events you should find the ever malevolent minority of this great body to be so obstructionist as to offend your enlightened wisdom, we the undersigned declare that you possess the authority to deem this great body in recess for the sole purpose of appointments." One could substitute "Mr. President" for "Great Leader", but the fundamentally obsequious nature of this letter could not be purged. Perhaps I should pause to consider that I am not just a Republican, but an American. As such, I should not be so interested in letting the Democrats embarrass themselves and more interested in preserving the dignity of the federal legislative branch. Unfortunately, the reality is that we now have Elmo and Stephen Colbert testifying, in character, before congressional committees. How can anyone restore dignity to an insititution that holds itself in contempt? Admittedly, that testimony was in the House, but can anybody really draw a sharp distinction between the two bodies in terms of dignity, intellect or seriousness.

- jkodak

January 6, 2012 at 1:59pm

This "solution" seems highly implausible. Whether "the president is entitled to make a recess appointment when the Senate actively denies him that constitutional power through procedural gimmicks" would seem to be a pure question of law, so a letter from 51 Senators would have no more weight in a court challenge than would an amicus brief -- it does not change the law; it merely opines on what the law is. Also, the litigation that would result would not be a suit filed by Sen. McConnell; it would be the action involving a nonbank entity over which the CFPB asserts regulatory powers. And it would seem, contrary to Amar's and Noah's analysis, that the nonbank would clearly have its own right to assert -- its claim would not be "I have a right not to have Richard Cordray as the CFPB director," but rather, "I have a right not to be regulated except by an agency with a validly appointed and confirmed director." What I don't understand is why, if the President wants to play hardball, he doesn't withhold all grants and contracts that would otherwise be awarded to states (and to entities in states) represented by one or more senators who are blocking a vote on his nominees. That would put substantial pressure on those senators to do what they ought to do, which is to allow a vote. Yes, the states or entities could sue to enjoin this withholding. However, litigation takes time, and time in this litigation is on the President's side -- those states and entities will not get any money until (and unless) the court rules for them. By contrast, in the litigation between the nonbank entity and the CFPB, time is on the nonbank entity's side. Also, in litigation over the grants and contracts, might the President (or an agency sued for denying a grant or contract) not have a reasonable argument that the issue is a political question, which courts should refrain from adjudicating?

- TARFON

January 6, 2012 at 2:24pm

Amar and Noah are right that there is an elegant legal solution. But it is not the one they propose.Rather, Obama (and his successors) should inform the Senate that he will make a ressess appointment for any nominee who does not get an up-or-down vote within 6 months of the nomination. The Senate will either start holding those votes, with a 51 vote majority required, or it will become irrelevant.

- CABChi

January 6, 2012 at 2:43pm

Faux News is talking impeachment now. But it would have to be proven that Obama knew that the Senate was in recess. And how could he know that it was in recess, when, apparently, the Senate is playing a shell game with itself and doesn't even know when it's in recess itself. Now you see us in recess, now you don't. The Republicans are going to be pulling stuff like this the rest of this election year. And it's going to get worse. Their self-humiliation knows no bounds. We are far from a representative democracy now. The "loyal" opposition is not only not loyal; it is anti-American. When a Democrat is in the Oval Office, its job is to make sure the government doesn't work. And when the Republicans get back in office, they'll make sure that both the government and the economy don't work. Faux News is talking impeachment. I'm talking treason.

- magboy47.

January 6, 2012 at 4:43pm

Correction: It would have to be proven that Obama knew the Senate was NOT in recess.

- magboy47.

January 6, 2012 at 4:55pm

Geez, I go away for a few hours only to come back, after a hard day's work, to find that what I initially thought was pretty slick has been well trashed here. No desire on my part to argue otherwise over this. Good thing I have resolved this year not to let my self esteem take body blows over bad calls. So while I'm feeling low, I'm not this year feeling lower than a snake's belly.

- basman

January 6, 2012 at 6:03pm

Tarfon: "I have a right not to have Richard Cordray as the CFPB director," but rather, "I have a right not to be regulated except by an agency with a validly appointed and confirmed director." Sorry, I don't buy it. Only the Senate has the right to determine who is validly appointed (confirmed is irrelevant because if it were confirmed recess appointments would not exist at all). Unless the Senate itself as a body asserts that the appointment was not valid what gives anyone else that right. And I would love to see the business that launches that complaint, they would be saying "how dare government protect consumers from our desire to engage in unethical behavior." It would be the kiss of death, look what happened to BOA when they tried modest fees or Verizon tried to charge people for paying bills, these were public relation nightmares. Cordray is not going to start imposing strict regulations. Face it, Obama won, the Republicans lost this one.

- blackton

January 6, 2012 at 6:09pm

basman, I don't disagree with you. I personally think most Americans would have zero interest in these kind of arcane things so Republicans are delusional if they think it will amount to anything. So yeah, since it would rattle Republicans cages go for the letter.

- blackton

January 6, 2012 at 6:19pm

So for the American legal beagles, why isn't this a good legal analysis, politics aside: http://www.washingtonpost.com/blogs/right-turn/post/obama-the-constitutional-anarchist/2012/01/06/gIQARy3neP_blog.html

- basman

January 6, 2012 at 9:52pm

I would say this "analysis" is complete nonsense. What is a "pro forma session?" I don't see any say around the fact that without a quorum, a body is not convened. Can there be a pro forma session where the Senate simply declares, "We are deemed here even though we are not?" so as to write the recess appointment power out of the Constitution? Seems ridiculous, no? But if that is ridiculous, is it any less so if some member is designated to show up and "declare" the Senate in session when no one else is there? And what the hell does this mean, other than George H.W. Bush said so? "The traditional test, as articulated in a 1989 published opinion by the Justice Department’s own constitutional experts in the Office of Legal Counsel, is “whether the adjournment of the Senate is of such duration that the Senate could ‘not receive communications from the President or participate as a body in making appointments.’ ” How long is "of such duration?" Can the Senate receive communications when it is absent? Can it participate in appointments when no one is present? If so, then it doesn't have to be there to be in session and we are back to my first point, it supposedly can just declare itself to be where it isn't. As for each house having to consent to the other's adjournment for more than three days, if the Senate cannot declare itself to be there when it isn't, can the House do so for it by refusing its consent? "You cannot be adjourned because we didn't consent, whether you are there or not." Also makes no sense. The proper answer to the refusal to consent is to refuse to consent to the other chamber being in adjournment. Then everyone has to show up every three days for a quorum. When either chamber fails to do so, it is adjourned and can no longer withhold its consent. Bye, bye. Obviously there has to be some rule that short adjournments, overnight, for the week-end, do not constitute a recess or the president would be making recess appointments daily. The three day rule at least finds some expression in the Constitution. The real reason for this is that it was never contemplated that Congress would adjourn for more than three days while in session because leaving Washington and returning in less than three days was impossible. Once they adjourned and left the city, they would not be back for a long time. Thus, it was expected that the Congress would convene and essentially stay convened until its work was done, then call a recess for some considerable period of time. That's why the three day rule is in the Constitution, so that one house cannot bring the work of the Congress to a halt by walking out. But if they have to consent to each other taking an adjournment of more than three days, they surely will. Just because they can in the modern world go in and out every three days doesn't mean they want to. And if they don't want to, then they should expect the president to exercise his authority in their absence. They cannot just say we find this annoying, having to convene every three days, and therefore the recess appointment power no longer exists.

- roidubouloi

January 6, 2012 at 10:16pm

"I don't see any way around the fact . . . " Once a chamber adjourns, it is adjourned until it reconvenes. The Constitution says a majority constitutes a quorum and provides the possibility of compulsory attendance by rule to assure the ability to produce a quorum. Without a quorum, I don't see that the body is convened within the meaning of the Constitution even if the "custom" has been otherwise.

- roidubouloi

January 6, 2012 at 10:18pm

Roi thanks for your spirited posts. I'm gonna' have a closer look at the issue tomorrow when I have a better moment and then tell you what I think, as a matter of sheer legal analysis.

- basman

January 7, 2012 at 12:46am

Looking forward to your thoughts on this, b.

- roidubouloi

January 7, 2012 at 8:23am

I'm preparing myself for instant dislike--mentioning a pet peeve in lieu of serious argument--but someone should point out that when an author uses a fancy term like "Hobson's choice," the author should know what it means. It refers to an apparent choice which is not a choice at all ("Any color you like as long as it's black"), as opposed to a true choice between two unpalatable options. My two cents.

- elmont

January 7, 2012 at 10:13am

But elmont (from Elmont?), are you making a distinction without out a difference?

- roidubouloi

January 7, 2012 at 11:10am

Busy day, estimating setting down thoughts around sixish pm, E.S.T.

- basman

January 7, 2012 at 12:41pm

I’m going to tread lightly, not being so versed in these matters, and there being, it seems, more moving parts than I’m familiar with and understand. But I’ll first make a mild credentialist point, which, I grant, isn’t an argument: and that is that it seem the issue—was on these facts, the Senate in recess at the material time?—seems, at a minimum one of first impression, never having been judicially determined as far as I’m aware, and big names, deserved or not, are lining up on both sides of the issue. So lightly just to rehearse the line of reasoning for the negative, that the Senate was not in recess, as I understand it: the Senate needed to be in recess for the recess appointment to be lawful; your Constitution, Article 1, Section 5, says that that neither branch of Congress can adjourn for more than three days without the consent of the other branch; since the House didn’t consent to such an adjournment at the end of 2011, the Senate to adhere the demands of the Constitution had to sit in some fashion every few days. The pro forma sessions, literally formal sessions, or in name only, or perfunctory, have for the last decade or so comprised that adherence without legal objection insofar as I’m aware. Apparently, and here I’m fuzzy on the point, many senators are away during these sessions because they can, again apparently, delegate their voting authority to their agents, those present, under unanimous consent procedures. And, therefore, and not for nothing, as Rubin notes: … The [Congressional Record] for Dec. 23 shows that Senate Majority Leader Harry Reid specifically asked for unanimous consent for H.R. 3765 so ‘that if the House passes and sends to the Senate a bill which is identical to the text extension of the reduced payroll tax, unemployment insurance, TANF, and the Medicare payment fix, the bill be considered read three times and passed.’ . . . . That’s not a ‘gimmick.’ That’s legislating.”…(Obama signed the legislation into law.) A variant of this argument is that while it may be arguable whether in these circumstances the Senate was in adjournment and recess, against the view that via the pro forma sessions it was not in adjournment—leaving aside the length of the adjournment needed to constitute a recess, a live issue in itself, it seems—how can the executive claim the right to decide whether a session of the Senate is fact real? So the argument is that that determination is up to the Senate itself; one branch of government cannot arrogate to itself such determinations for its own political ends against the judgment and (recent) practice of the other branch. On what criterion, or criteria, especially given the December 23 legislation signed into law, would the executive make that determination? Don’t the consent procedures noted briefly and the December 23 business that was conducted answer your argument about the need for a quorum, if I understand it? And finally, for now, what authority is there for the proposition that the pro forma sessions in law don’t comprise the Senate being in session; what was the original Democratic rationale for these sessions? There must have been legal justification proffered at the time.

- basman

January 7, 2012 at 7:21pm

Akhil and Timothy: yes! simple, elegant and achievable. If only Reid & Co would actually do it... @Roi--- -"I am very unimpressed with this, to put it mildly...Not elegant. Not clever. Silly" -"Me, on the question what is and is not a recess appointment." Please spare us. Learn to apply the "who cares standard." On this issue, even if you are a lawyer (something that I can't ascertain), why should any of us care about your thoughts on subtle Constitutional questions about the procedures of the Senate and Executive appointments? To put it simply, who cares what you think?

- mcmahon.an

January 7, 2012 at 10:34pm

Basman, I think that whoever wrote that piece is comparing apples and oranges. The requirement of three readings, etc. are just Senate rules that the Senate can surely alter for a specific occasion by unanimous consent. If they want to vote unanimously that the moment the House returns a bill that is identical to one already passed by the Senate no further process is required, I don't see that there is any constitutional element to that whatsoever. The quorum requirement of the constitution has no bearing. On the other hand, the question of whether the Senate is or is not in recess for purposes of the constitutionally provided power of recess appointment clearly cannot be left entirely to the Senate to decide, at least to the extent that the Senate cannot declare itself to be in session when there is no one there. It either is in session under the Constitution or it isn't. The Constitution says that a majority constitutes a quorum. Therefore, I cannot see how the Senate can convene without a majority present. This is a constitutional matter. The so-called pro forma sessions, in which the Senate deems itself convened without a quorum present, appear to me to be constitutionally meaningless. If the Constitution says that a majority is a quorum, then the Senate cannot take any action corporately without a majority present. The one stated exception is that a minority can adjourn, presumably to a fixed time, and can, if authorized by the chamber's rules, compel attendance. The question how long an adjournment constitutes a recess is certainly obscure. The so-called "tradition" as argued by these conservatives that it is long enough such that the Senate is not able to do business is plainly meaningless. It answers nothing. The only relevant constitutional reference appears to be the three-day rule requiring each house to consent to an adjournment by the other for more than three days. That it least sets a standard for what is de minimis. Therefore it makes the most sense to me to say that not more than three days is de minimis and does not constitute a recess. I don't see where or how anyone could determine any other period to be a recess. However, as I said, this is not well thought out in the Constitution. ___________________ Yes, mcmahon, I am a lawyer with a right fancy law degree. I write for anyone who is interested, just like anyone else posting anything here. For those who are not interested, they can pass right on by. Now you can explain to me why exactly I should care that you don't care. I don't. If and when you have something interesting to say, I will pay attention. Otherwise, you are just taking up space.

- roidubouloi

January 8, 2012 at 1:09am

To the best of my knowledge, basman, no Senator can delegate his or her vote. As the Senate has plenary control over its own rules, there are surely things of a non-constitutional dimension that it can allow to be handled by officers or committees or even a minority on the floor, as far as its own rules go. But as soon as there is a constitutional implication, things change. The Senate cannot adopt a bill without a quorum and a majority vote. It therefore cannot deem itself to have voted a bill that it has not voted. Nor in my view can it declare itself convened if there is no quorum present.

- roidubouloi

January 8, 2012 at 1:15am

@Roi-- "Now you can explain to me why exactly I should care that you don't care. I don't. If and when you have something interesting to say, I will pay attention. Otherwise, you are just taking up space." -1) Congrats on your right fancy law degree. I don't one, will never get one, and am simply tying to get a sense of how much weight I should apply to your comments. That's not obvious to me just by reading them. *I am simply tying to ascertain whether I have a good reason to read your prolific posts, fair?* -2) And why should you care that I don't care? I think we both agree that's no special reason for you to care about what I say. Do I have anything interesting to say right? Despite your fancy law degree, you wrote in an earlier post that you don't know the relevant caselaw. Despite your fancy law degree, you may not even do much work with constitutional issues; then again, you might....How am I to know? I would simply like to know when I read your posts. -3) At the end the day, yes, I may simply move on.

- mcmahon.an

January 8, 2012 at 11:04am

@ROI--This seems to be a straightforward analogy to the situation with legal specialties and whose opinion you should trust: you generally wouldn't place as much confidence in the medical opinion of an oral surgeon about how to operate on someone's knee as you would of a competent specialist in that area. This generally holds regardless of whether the oral surgeon has the more impressive pedigree or a sharper medical mind.

- mcmahon.an

January 8, 2012 at 11:43am

mcmahon, Your analogy to medicine doesn't really hold. I happen to think that the practice of medicine, both as to diagnosis and treatment, should rely much more heavily on statistical evidence than it does. However, with or without formal statistics, experience and judgment play a special role in the practice of medicine. This is because the ability to recognize repetitive patterns is key. It is the similarity between human beings, within a range, that allows for much of successful medicine. Legal questions, on the other hand, are questions precisely because they are novel. Yes, if you want to know the answer to something that is well understood it saves a lot of time and avoids a lot of mistakes to consult someone with specialized experience in the practice area. But no legal issue is inaccessible to a good lawyer. Any good lawyer who wants to put in the time and effort can, in a relatively short time, become well-versed in any area of law. And a good lawyer is able to draw useful analogies from a wide variety of sources. There is also a clinical aspect, understanding who people in the legal universe, judges, other lawyers, government agencies, behave that is more similar to medicine, but that is not what we are discussing here. Predicting what, for example, the Supreme Court would do with this question is a different subject than the legal arguments that can be advanced on either side. Also, legal arguments are accessible to all lawyers. You simply cannot invoke authority, "I know the answer because I have the experience and here it is." You have to be able to justify your position with appropriate legal arguments and all good lawyers are able to evaluate those arguments and offer criticism or counter-argument. The arguments are either persuasive or they are not The identity of the lawyer advancing an argument is seldom thought as sufficient reason to accept or reject it. It must be persuasive on its merits. I advance certain legal arguments that make sense. Anyone, lawyer or not, can advance a counter-argument, as basman did, albeit somewhat tentatively. And then we weigh the arguments. The gist of my argument is that the Constitution defines a quorum of the House or Senate as a majority. A quorum is the minimum number required for the body to be able to act in a corporate capacity, meaning for an act to be the official act of the body. From a constitutional point of view, the only official acts of the Senate are adopting legislation, confirming treaties and appointments, voting on impeachment (maybe a couple of others I have forgotten). When it does those things, or is available to do those things, there must be a quorum or the acts of the individuals are not the acts of the body as a whole. As to any matter not impacting the Senate's constitutional authority or corporate action in its constitutional role, the Senate can make whatever rules it wants, as to the nature of debate, as to how matters are brought to the floor, and as to who must participate in the ordinary decisions of managing the Senate's business. The question of when the president can make a recess appointment goes directly to the question of when the Senate is able to conduct constitutional business. This must be determined in accordance with the Constitution. The so-called pro forma sessions are the claim that something less than a quorum, even a single Senator, can appear and convene the Senate every three days and the Senate is therefore not adjourned for more than three days at a time. I think this is nonsense, a pure legal fiction of no constitutional importance. The Senate cannot convene to do constitutional business, such as confirm a presidential appointment, without a quorum. It is not convened under the Constitution without a quorum no matter what it may declare. Might as well have a janitor "convene" the body. It would have no more constitutional significance. If a quorum is not present, or at the very least immediately accessible as the members are in the building if not on the floor, the body is either adjourned or in recess. It remains adjourned or in recess until a quorum assembles and is called to order. I just don't see any way around it. At the same time, human affairs are conducted so as to be practicable. Thus, if a session is called to order, it is generally considered to remain under way even if members wander in and out as long as nothing is being done that officially requires a quorum. And if one is needed, there is generally some time allowed for one to reassemble without the session being considered to have adjourned. Analogously, the body can adjourn for some period, over night, for lunch, over the week-end, without the session being considered to have ended and the body to have gone into recess. It seems generally accepted by all participants in the debate that an adjournment of some length of time is a de facto recess even if one is not declared. And it also appears that three days has some general acceptance as the permitted duration of an adjournment without it becoming a recess, no doubt because the three days is mentioned in the Constitution albeit in a slightly different context. The period of time is debatable, although there appears to be no authority for anything other than three days. The question whether the Senate can convene without a quorum (or at the very least a quorum in the building able to assemble imminently to conduct business) does not seem to me to be debatable. As to relevant cases, I have made no effort to look. I am not writing a memorandum of law here. However, I strongly suspect that there are not very much on point because we would have heard of them by now. Whether the conservatives in the article linked above of Lawrence Tribe writing in the Times. no one is citing cases. If there were any to cite, I am pretty sure they would be citing them.

- roidubouloi

January 8, 2012 at 4:27pm

Geat riposte Roi, on a first quick look. I'm just checking in and checking out right now but will look at what you wrote more closely this evening.

- basman

January 8, 2012 at 4:32pm

ripostes that is

- basman

January 8, 2012 at 4:35pm

@Roi I originally drew an analogy *between legal and medical specialties as a good way to gauge how much you confidence should be placed in an opinion about a particular case*. You replied by noting how an analogy *between medical questions/evidence and legal questions/evidence* doesn't plausibly hold. Fine! I can grant you that. For good measure, you then brought to the fore some exceptionally weak points that I didn't have in mind about lawyers as experts. Here is one: "The identity of the lawyer advancing an argument is seldom thought as sufficient reason to accept or reject it. It must be persuasive on its merits." To most of them, I can only say: "Well, Duh!" You're also right about this: "Predicting what, for example, the Supreme Court would do with this question is a different subject than the legal arguments that can be advanced on either side." But don't you see that Akhil and Timothy are more interested in the post above with what the Supreme Court will do with the question? That's what's more interesting politically, and to the non-jurist (I would guess) than the legal arguments that can or cannot be made. In fact, I would go so far as to say that the legal argument you deliver in the post above makes sense to me, too; yes, the whole idea of a *pro forma* session looks like nonsense when you read the Constitution (both jurists and non-jurists). So what horse am I still beating? A Harvard Law professor purportedly said something like the following at the outset of a Constitutional Law seminar during the last century, "Don't read the text of the Constitution itself. It will only confuse you." (Sorry, need to research to find the exact quotation) Indeed, ROI, as much sense as your textual argument makes, I take it that the text itself doesn't necessarily matter if/when SCOTUS ever rules or as a matter of politics. With that perspective in mind, Timothy and Akhil have made a great post. At the risk of diminishing returns (for both of us!) you needn't reply. One more thing: Thanks for taking the bait!

- mcmahon.an

January 8, 2012 at 8:49pm

Sorry, mcmahon, but you have it backwards. I don't know about Noah, but the Yale Sterling Professor of Law could not possibly believe that a letter from a majority of senators that is not an act of the Senate would mean squat to any justice of the Supreme Court, let alone the lot of them. The one thing their proposal is certainly not is a method to address the Supreme Court. Their proposal is purely political. Also, although it starts from the text -- always a good place to begin when construing any legal document, even if you don't believe the strict constructionist hooey as I do not -- my argument is not at all a strict constructionist argument. Just the opposite. I am saying that the text doesn't answer the question. But the text does say some things. It is standard common law construction to try and reconcile the things that are clear in the text -- such as the definition of a quorum -- with the things that are not clear in a manner that makes sense out of the whole. But that is decidedly not so-called strict constructionism. What matters or does not matter to this particular set of justices is a whole other subject. I maintain that the conservatives on the court can be predicted quite reliably if one can but answer the question, "Where do the interests of the monied class lie in this case?" They will then ignore precedent, bastardize legal method, do whatever they need to do to reach the outcome that serves those interests. See, e.g., Bush v. Gore, Citizens United, and on and on. Now, did I take that bait right for you, mcmahon? Gosh, I sure did fall for the opportunity to use your earlier post to explain some things about both law and the art of legal construction that some people might find interesting. Not you. I understand that.

- roidubouloi

January 8, 2012 at 9:11pm

Your insights are minimal, your ego is huge, and you are exceptionally defiant. Great. No one cares! Start your own blog if you want to pontificate.

- mcmahon.an

January 8, 2012 at 9:34pm

Still treading lightly but: It must be that no Senator can delegate his or her vote. But then I don’t understand what it meant for the Senate in pro forma session to pass or consent to or read three times or whatever it did to formalize and get the 2 month pay roll tax cut to Obama for signing into law. Something happened on December 23, 2011 that seems to belie a recessed Senate. So I’m missing your first point: three readings, rules, unanimous consent, whatever else: the issue is whether the Senate is in recess so that your President can make recess appointments. I don’t understand how, whatever the December 23, 2011 Senate business was, it can stand together with the idea of a recessed Senate. And I don’t understand how whatever happened on the 23d doesn’t have a constitutional element if I understand you. There of course are any numbers of issues, constitutional and otherwise, raised by the presence or absence of a quorum. But that is not to say, is it, that the December 23, 2011 legislative business is without a constitutional element: that element is, is it not, the very constitutionality of that business. Lack of a lis isn’t the same as no constitutional element. But maybe my comments signify that I’m missing your argument. Is it that even if the Senate could do what it did on December 23, 2011 in pro forma mode, it was still sufficiently “unfunctional,” or insufficiently constituted—no quorum— that it functionally or technically was in recess so that Obama could make his appointments? I have a hard time seeing that for the reason I just stated. I wonder whether from a more overarching perspective the issue turns on whether one applies a test or a rule, the former a functional discretionary exercise taking into account a number of factors as to whether the Senate is sufficiently functioning or not so as to conclude it is or isn’t in recess , the latter some kind of bright line. Regardless, and repeating myself, and however one is to approach the issue, I continue to have put together things going on, as on December 23, and a recess. An observation only: I suspect Obama and his circle of advisors thought the legal question was unclear though arguable along your line of thinking or some variant of it and didn’t care. The politics of this is good for him, and rightly so, as it dramatizes and makes vividly concrete how obstructionist the Republicans are and takes the fight to them, as he has been urged to do. That said, I’d be interested, if you have the patience for this, to understand better how you put recess and December 23d together.

- basman

January 8, 2012 at 9:35pm

p.s. I haven't read the bulk of what you wrote to mcmahon.an.

- basman

January 8, 2012 at 9:37pm

p.p.s.s. If we deal with the issue by means of a test as opposed to a rule, then the idea of letter by the leader of the majority assented to by his Senators makes sense to me in the way of building the case for there being a recess.

- basman

January 8, 2012 at 9:40pm

It's hilarious that you interpreted me as focusing in on your argument as "strict constructionist" and disagreeing with it because I used the word "textual argument" Hilarious. You took the bait FAR BETTER than you might ever imagine, i'm afraid. Now goodbye forever

- mcmahon.an

January 8, 2012 at 9:50pm

Somehow, mcmahon, I don't think we have seen the last of you. But, you're welcome. _________________ basman, my understanding is that the, in effect, the Senate did not actually do anything on December 23. A unanimous consent agreement is part of the practice of rules that controls how a matter will be considered, debated, etc. When the Senate and House pass different versions of a bill, there has to be a reconciliation so that ultimately they pass the same bill. They have to be identical to become law. Rules of procedure also regulate the process for adoption of the reconciled bill. In this case, the unanimous consent was an agreement that if the House adopted and sent to the Senate a bill identical to the one that the Senate had already passed, not further process would be required. But the key thing is that the Senate had already passed the bill in question. It was not passing it on December 23. The unanimous consent was directed solely to the Senate's rules of procedure for concluding the adoption process; since, by hypothesis, the House was returning a bill identical to the Senate bill, the unanimous consent agreed that no further process would be required. All a matter of Senate rules, not a matter of passage, by majority vote with a quorum present, of the bill. The various reports are unclear, but I do not believe that the "unanimous consent" was adopted by Harry Reid, by himself, on December 23. There was previously a unanimous consent, while the Senate was actually sitting, and it was put into effect on December 23 because the House did return the identical bill. The Senate can organize its business, the processing of material, however it wants, including with "pro forma" sessions. But a law can only become law if there is a majority vote, in session, which requires a quorum. An appointment can only be confirmed by a majority vote in session, with a quroum. What occurs at a "pro forma session" could as easily be done with no session at all if the rules were written that way because it does not involve voting. So, they can call it a session if they like. They can call it a championship tennis match if they like too. But I don't think it the Senate is therefore convened within the meaning of the Constitution. If the Senate is not convened, it is either adjourned or in recess. In my opinion, the open question is, when does an adjournment become a recess for purposes of the recess appointment power? I don't think there is a serious argument that the Senate is convened because one Senator shows up with a gavel.

- roidubouloi

January 8, 2012 at 11:33pm

What does the suffix .an mean? A country, e.g. Andorra?

- ironyroad

January 8, 2012 at 11:45pm

b, To try to cut through a bit, if the Senate wants to have a rule that a bill is not considered finally adopted until delivered to the Clerk of the Senate in a red box, it can do that. It can then allow the delivery in the red box to be handled by officers. It does not have to oblige itself to vote on the delivery, or specifically order the delivery, or observe the delivery. And it can waive the red box completely if it wants to. This is in effect what happened. What the Senate cannot do is dispense with a vote on the text of a bill with a quorum present. Unless that vote occurs, the text cannot become law. Everything else in its own rules can be waived by the Senate. It can say that delivery in a red box will be "deemed to occur" if it prefers that locution to simply saying "skip the red box this time." The Senate, by unanimous consent, had previously waived some of its own normal processes, conditioned on the House adopting and sending to the Senate the identical bill so that it would satisfy the constitutional requirement that the identical bill be adopted by both houses. They could as easily have delegated this matter to a clerk to certify the receipt and then send the bill on to the president.

- roidubouloi

January 8, 2012 at 11:51pm

Thanks, I'll consider further what you say. But for now sorry to say back to the dull stuff of justice and getting my fees paid.

- basman

January 9, 2012 at 10:53am