Were the Recess Appointments Constitutional? The Case for...

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JONATHAN COHN JANUARY 5, 2012

Were the Recess Appointments Constitutional? The Case for Yes

Should President Obama use the recess appointment power when Republicans in Congress refuse even to consider his nominees? You better believe it.

Not only are Republicans blocking Obama’s nominations at a record rate. They are doing so in order to impose their own ideological agenda and, in some cases, to undermine duly passed laws they don't like but can't repeal.

That’s a modern-day form of nullification, as the political scientist Thoman Mann has put it and the Atlantic's James Fallows has been trying, desperately, to remind people. Obama would be derelict in his duties if he did not use every inch of executive branch authority to overcome it.

But when Obama chose to use the recess appointment power on Wednesday, in order to put Richard Cordray in charge of the new consumer financial protection bureau and to fill three vacancies on the National Labor Relations Board, was he acting within the limits of his constitutional powers? That’s a more complicated issue. Even liberals sympathetic to Obama’s cause aren’t sure: My colleague Tim Noah, for example, argued yesterday that Obama probably exceeded his authority.

Constitutional limits can be inconvenient but they still matter. And I thought Tim made a pretty good case. But, based on a series of conversations today, I think Obama was within his rights after all.

Legally, the issue is very simple. If the Senate was not in session on Tuesday, then Obama had authority to make the appointments. That’s the whole point of the recess appointment power – to allow the president to fill positions and staff the executive branch when the Senate cannot perform its “advise and consent” function. But if the Senate was in session, then Obama didn’t have authority to make the recess appointments. 

But figuring out whether the Senate was in session turns out to be not very simple.

Senate Republicans say that it was in session – very much by design. Aware that Obama might use his recess appointment power, Republicans copied a strategy Senate Democrats developed at the end of the Bush era: They forced the majority party to accept an arrangement under which the Senate was in “pro forma session” at least once every four days. Nothing happened during these pro forma sessions: They lasted just a few moments each. But the effect was to prevent a formal, official recess. (By tradition and past interpretations, a recess doesn’t become official until it’s lasted more than three days.)

The White House and its allies say these sessions were not real sessions, at least in the constitutional sense, because the Senate was not prepared to do any governing while they were quickly gaveling in and gaveling out. They note that the motion (by Oregon Senator Ron Wyden) to have these pro forma sessions said explicitly that there would be “no business conducted.” If, for example, the White House had sent nominations to the Senate during these periods, administration officials and their supporters say, it would not have acted upon it. Here is how one senior administration official put it to me:

Our view is that they can't have their cake and eat it too. They can't say, on the one hand, we are not in recess for the purposes of the recess appointments clause and, on the other hand, we are in recess for every other purpose. ... And if the Senate doesn't want the President to make recess appointments, as he is entitled to do, the Senate can prevent that by staying in session and being available to provide advice and consent on his nominees.

The administration goes on to point out that Obama did not use the recess appointment power to fill every vacancy. He did so only for the new consumer board and the NLRB because, without the appointments, those particular agencies simply could not operate. Here’s what White House Counsel Kathy Ruemmler said:

These appointees were necessary for these government agencies to function. The agencies were created to enforce duly passed laws, the Dodd-Frank Act and the National Labor Relations Act. The president has a constitutional obligation to enforce the laws and to make sure that personnel necessary to enforce the laws are in place. That's the whole point of the recess appointment clause, to make it possible for the president to do that. 

I'm partial to the laws being enforced, obviously, but I think the logic is sound. Still, there’s one more nagging issue, which Tim raised in his item.

On at least two occasions in the past, presidents used the recess appointment power by timing their recess appointments for the period between the first and second years of a congressional term. The new congressional year began at noon on Tuesday, so why not simply make the recess appointments at the moment the previous year’s session ended – even if it was, say, at 11:59 a.m.? Even if it was just for a few seconds, there would have been enough time to send an email or sign a paper making the recess appointments. Such a move would have not have been as constitutionally ambiguous.

The problem, it turns out, is that there was no intermission between the sessions this time because the Senate never formally recessed, not even for a nanosecond, as it did when Congress tried to block some of Theodore Roosevelt's nominees in 1903. (Jonathan Bernstein told that story a few weeks ago; as Brian Beutler reported earlier this week, officials in both parties had anticipated that Obama would try the same thing.)

Robert Steuer, spokesman for Senate Minority Leader Mitch McConnell, confirmed this: “At noon on January 3rd, the first session of this Congress ended and the second session began.” In other words, making the appointment at 11:59 and 59 seconds would have raised the very same questions as making the appointment at some other time. (Needless to say, McConnell still thinks Obama's appointments were unconstitutional.)

Isn’t this all just procedural gobbledygook? Isn’t Obama just taking advantage of a loophole? Absolutely. But he’s doing so because Republicans have taken advantage of a loophole to undermine his agenda and, along the way, to pervert both majority-rule and the constitutional balance of powers.

I'm not wild about what's happening: Nothing would please me more than if, in reaction to Obama's move, Senate Republicans agreed to procedural reforms that restored majority rule and allowed the government to function normally. Alas, I see no signs of that happening.

Update: I originally wrote that the recess appointments took place on Tuesday. They took place on Wednesday. Duh.

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posted in: jonathan cohn, politics, congress, senate, white house, james fallows, richard cordray, ron wyden, thoman mann, tim noah

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