The New Republic

The DOJ is not making the argument that the President could appoint someone over a weekend. In fact, there are previous OLC opinions stating that more than three days is required, and this opinion does not reverse those previous opinions at all. Rather, it is arguing that for purposes of the recess appointment clause, the recess was not three days. It was in fact longer than twenty. It makes a powerful argument that all the history (from the framers to now) supports the proposition that the relevant question is whether the Senate can advise and consent. The Senate cannot advise and consent under a unanimously-agreed-to order that no business can be conducted for more than a month, and cannot Constitutionally advise and consent without the required quorum under Article 1 Section 5. The Senate can still come in twice a week, and that will still block appointments as far as the OLC is concerned.

- andrew123s

January 12, 2012 at 5:29pm

Paved roads, highways, buses, automobiles, trains, jet planes. This reminds me of the Sunday services on tv with the minister reading from the good book as the believers read along silently with their copies of the good book. The authors of the good book couldn't imagine science, and the authors of our good book couldn't imagine paved roads, highways, buses, automobiles, trains, and jet planes. The flaw is in the authors of the good books. That otherwise very smart people have to waste their time divining the words of either good book reveals just how primitive we are and how far we have to go. Other than that, I agree with Noah.

- rayward

January 12, 2012 at 5:46pm

"If so, why send nominations to the Senate at all?" This is a very tiresome question. Confirmed appointees last as long as the President holds office, or as long as the full term of the position as laid out in the respective office, a recess appointment must be approved by the Senate by the end of the next session of Congress, or the position becomes vacant again; this means that a recess appointment must be approved by the end of the next calendar year. No executive branch could function long with nothing but recess appointments. John Bolton had his one year, alienated the hell out of everyone, and was out on his ass. If he performed against expectations and did brilliantly then he could have won confirmation. This is how it should be. The Republicans have also structured these sessions to not perform any function unless it is done by unanimous consent, thereby preventing Dems from coming back and making a quorum and confirming appointments. They are trying to have it every way they can and are not upholding their own oath to the Constitution, which is to perform their duties. Preventing the functioning of duly authorized Federal agencies (authorized by the very Congress they work for) as a form of political blackmail is tantamount to treason, they are betraying their oaths of office. They don't like the Consumer agency, then win the necessary seats in Congress and win the White house and change the rules, until then do your Goddamn job and advise and consent. Those assholes have literally said they have nothing against Cordray they just want to use undemocratic means to sabotage the agency.

- blackton

January 12, 2012 at 6:31pm

Y'all would make great jesuitical Republicans.

- liberalref

January 12, 2012 at 6:53pm

Is this trolling for click-throughs from the Daily Caller or something? Why are you fixated on one blinkered view of this issue, which you seem to be getting from a particular source because you repeatedly acknowledge no familiarity with the legal issues raised here at all? What is going on here? This would be like a sports columnist going on and on about a fake field goal attempt [that somehow had yet to succeed or fail] - I get it, you disagree with this on several levels, from the macro the micro. But this monotonous-yet-breezy alleged lecturing about this one issue is so weird to me. Move on.

- misterpibb

January 12, 2012 at 8:21pm

"Because they are in fact recesses. Because we say so." Uh, no. It's not because they say so, it's because they are in fact recesses. The memo makes an excellent case that the pro forma "sessions" fail the test of the Senate being "in session" on the pertinent grounds that despite being nominally "in session", lacking a quorum, the Senate is unable as a practical matter to provide advice and consent on presidential appointments. I'm with misterpibb: you seem wierdly hung up on this, TN, and you seem to have a peculiarly naive, rigid conception of the law. You keep arguing that the recess appointments are "unconstitutional" as if "unconstitutional" were some objectively knowable Platonic ideal. It isn't. Nothing is unconstitutional until the Supreme Court rules it unconstitutional, and in this instance Justice has, obviously enough to me, provided the president with strong enough arguments that he can have reason to think that even if the Senate Republicans can engineer grounds to bring suit, he'll have a good chance of prevailing before the Court. Reading your many posts on this affair leads me to the following analogy: A 98 lb weakling (Obama) is getting beaten to a pulp by a 220 lb bruiser. The weakling takes up a bar stool hoping give back at least a little of what he's getting, but then Tim Noah steps in. "That's not in the Marquess of Queenberry Rules!" he shouts. "Put that stool down and fight like a gentleman!"

- AaronW

January 12, 2012 at 9:36pm

I agree -- this is a political confrontation, in which the Obama administration is finally calling BS on the Republicans' attempt to completely stymie the work of government and the basic prerogatives of the Executive branch. The Senate has the right to advise and consent, but not to refuse to do their job of advising and consenting (or not) in a way that undermines the basic principle. If they think they have a case against a particular appointee or appointees, they have some options. They may not want to use the options, however, as a potential Republican president might want to make the odd recess appointment himself, if he faced a situation where a Democratic Senate was behaving in the same way.

- ironyroad

January 12, 2012 at 10:10pm

This is an interesting legal issue, I'll give it that. But, really, does it matter? I don't see how it does. Earlier you advocated that the President should have tried to make the appointments in the minutes before they started their new session. But this is really just advocating for more procedural gimmicks. Why not make the appointments after the new session starts? If the President doesn't directly challenge the Senate here, the Supreme Court may never get to delineate when Senate ridiculousness actually begins to impinge on Executive power. Now, in truth, the Court may never hear the case anyway due to standing requirements. But even if this did go before the Court, is that such a bad thing? If I were the President, and a former Senator and a constitutional scholar, I may be more interested in letting the Court set guidelines on this issue then in promoting the use of ridiculous procedural gimmicks. And that, in the long run, is the better move if we want transparent and accountable democratic institutions, no? And just to preempt any argument that the President should show his hand if this is what he is doing, I think that doing so would just undermine the credibility of his argument that these, particular appointments are constitutional. The Court will set forth guidelines either way, why not go for the win? Let the Court say the Senate minority has gone too far. I find the argument that this will lead to recess appointments over long weekends or the like baffling. Is it really a slippery slope from a concerted and admitted Senate campaign to deny the President's recess appointment power that has gone on for weeks and is expressly aimed at shutting down offices of the Executive branch to casual weekend recess appointments? I think most people can see the difference and the Court certainly can. This isn't pornography, after all.

- zdsharpe

January 13, 2012 at 7:03am

What happened to the ridiculous headline?

- subterran

January 13, 2012 at 11:06am

Tim, I love your stuff, but in this case, you're repeating yourself way too often. Shoot, the Bush Justice Departement issued a memo redefining torture so they could half-drown people while still pretending they didn't technically "torture" anybody. THAT was over-reach. What Obama has done is a concern, yes, we don't want to make it too easy for Bush-III (whoever that winds up being) to ignore the Senate and put Judge Bork on the Supreme Court. But you've raised the "unconstitutional" flag already. Tell you what, let's wait until the Congress FINALLY convenes Januare 21, and see what kind of outrageous rhetoric they spout. Until then, let's just let the Obama administration FINALLY do something, and let the Supreme Court decide if it's unconstitutional or not.

- AllanL5

January 13, 2012 at 11:51am

I do not read Mr. Noah making anything that I recognize as a legal argument. I repeat here what I wrote in response to basman in Recess, Part I: There is a great deal of irony in connection with the Kagan opinion. The NLRB has five seats and I believe that a majority, three, constitutes a quorum. Kagan was discussing whether the unwillingness or inability of the President to appoint and the Senate to confirm when there are three empty seats effectively nullifies the statutory mandate of the Board by rendering it unable to act. Without rehearsing the procedural details of the effort of two remaining members to act for the entire Board corporately, the Supreme Court ultimately held that the NLRB could not act with only two members, even if the Board itself establishes a procedure for this. Thus, the view of the Supreme Court regarding a quorum requirement, in that case established by statute, in the case of the Senate established by the Constitution, would actually seem to dispose of the question whether the body is in session. As you describe above, the long-held view of the Senate itself is that it is in recess when it is not in session. Given the Supreme Court's view of a quorum requirement, how can the Senate be in session if it does not convene with a quorum? How can it be considered available to act when the number of Senators necessary to take any constitutional action -- adopt legislation, confirm an appointment or treaty -- is not present or able immediately to assemble in response to a quorum call? I think the DOJ opinion does make this a central issue although the language of the Constitution is quoted in a footnote. As to Kagan's opinion, she was not discussing at all the question how the Senate could prevent a recess appointment in order to nullify the ability of the NLRB to act, without the concurrence of either the House or the President as required for legislation. She was taking it as given that it can by remaining in session. The mechanics of how the Senate could do this if it sought to were simply not the question she was addressing. Thus, her rhetorical acceptance that the pro forma sessions intended to do this were constitutionally sufficient to do this really was obiter dictum under the normal understanding. The logical conclusion of the position that a single Senator declaring the Senate convened is a constitutional session is that no declaration and no Senator is required. What if the Senate rules provided that the Senate is convened when the gavel is delivered by the Clerk of the Senate to the rostrum or that it is convened when the Sergeant-at-Arms calls the Senate into session at the scheduled hour? If the Clerk delivers the gavel or the Sergeant-at-Arms calls the Senate into session without any Senator present, is the Senate in session? If one Senator is there, why does that make it a session? Makes no sense at all. And if that is the case, why can the Senate not declare that it remains in continuous session until it declares that it is in recess, which would make any recess appointment impossible? No one here or anywhere has yet to offer any explanation why, if a "pro forma" (in form only) session vitiates the President's recess appointment power, the declaration of the Senate does not by itself suffice. Clearly, however, allowing one branch simply to declare null a power conferred by the Constitution upon another branch raises a serious question. If that is not to be permitted, and I don't see that it can be permitted, without doing violence to the constitutional structure, then I think one is rather quickly driven to the conclusion that the Senate cannot prevent a recess appointment without terminating its recess by convening in fact, not in name only. Convening in fact requires a quorum, else you are back to the one Senator, or the gavel, that can take no constitutional action. The point about the lack of House consent and the fact that the pro forma session satisfies the House seems to me of little relevance. The House can consent to a Senate recess. If the House chooses to consider that the Senate, with a pro forma session, is acting in accordance with its power to give or withhold consent, it seems to me that the Constitution is satisfied. The House is consenting to the Senate doing what it is doing. If that is a constitutional recess because longer than three days in fact, then the House has consented. If it is not, then nothing is required of the House. As well, the only person or body with standing to complain of the Senate going into recess for more than three days without the consent of the House would be the House, as only its prerogatives are offended by the Senate doing otherwise. It is irrelevant to the President's authority. If the Senate cannot deem itself to be in session when it is not, I don't see how the House can do it for the Senate in derogation of the President's authority. The House doesn't even have a constitutional role in appointments. It would make no sense to say that the House can bootstrap itself into a veto over recess appointments when the Senate has no such power. As to the other arguments, I simply do not see how the authority of the Senate to establish its own rules of procedure can vitiate the power of recess appointment. That is no longer a matter solely of the Senate's process, but one determined by construction of the Constitution. You get right back to the point that, if the pro forma session has any relevant power, the Senate could as easily declare itself in perpetual session and thereby write the recess appointment power out of the Constitution. It would require a very strange form of constitutional interpretation to countenance that. As I have said before, the question of how long an adjournment constitutes a recess is a separate question from when the Senate is in session and when it is not. Just as it would be absurd, in my opinion, for the Senate to be able to eliminate recess appointments simply by declaring itself in session, it would be absurd for the President to be able to make a recess appointment because the Senate breaks for lunch or too many Senators leave the floor. The practical interpretation, that appears to enjoy a fairly broad consensus based on the three-day rule for House consent, is that any adjournment for less than three full days, not including Sunday, is not a recess. It follows that if the Senate wants to remain in continuous session, it must convene every three days, in fact, not by declaring that it is, via rule or otherwise, when it isn't. Regarding the so-called adoption of legislation without the Senate present, I do not believe that any legislation has been adopted without a vote of a majority of a quorum present in fact. That is the constitutional requirement. The rest is Senate process, and if some part of the process other than a vote while in session with a quorum was allowed by rule, without the Senate actually being in session, I don't see that that has any implications at all for this controversy or raises any question about the constitutionality of the Senate action.

- roidubouloi

January 13, 2012 at 12:01pm

Aaron, here is Raines Vs. Byrd ruling: No. In a 7-to-2 decision, which avoided the question of the Act's constitutionality, the Court held that the individual congressmen lacked proper Article III standing to maintain their suit. The Court explained that the congressmen failed to show how the allegedly unconstitutional Act resulted in their personal injury, since it applied to the entire institution of Congress. Moreover, the congressmen based their claim on a loss of political power rather then a demonstration of how the Act violated one of their particularized legally protected interests. The Court concluded that, having failed to meet both of these standing requirements, the congressmen did not present the Court with a case-or-controversy over which it had jurisdiction. Some importance must be attached to the fact that appellees have not been authorized to represent their respective Houses in this action, and indeed both Houses actively oppose their suit. In addition, the conclusion reached here neither deprives Members of Congress of an adequate remedy--since they may repeal the Act or exempt appropriations bills from its reach--nor forecloses the Act from constitutional challenge by someone who suffers judicially cognizable injury resulting from it. I can't see how individual Senators can have standing to challenge the appointments, the whole Senate itself has to challenge it and with Dems in charge I can't see it happening.

- blackton

January 13, 2012 at 12:33pm

Mr. Roid, an excellent and well thought out opinion sir . However, I take issue with at least one significant point. Perhaps I could make my point dramatically. Let's assume there is a hypothetical constitutional requirement that both chambers' consent is required before either chamber can agree to "recess" for more than three days. And we may further assume that while one hypothetical chamber is about to adjourn for a lawful period of time, with or without the consent of the other chamber, so that the members can watch the Flintstones on tv in the privacy of their own homes, the ceiling of the chamber collapses, injuring all the members within that august house. For days following this tragedy, many of the members are frightened and refuse to enter the chamber, fearing for their safety, and no quorum exists to vote on an actual adjournment (recess). Is this chamber automatically in recess during this time? I don't believe that the extended "recess" is really a recess within the meaning of the constitution.

- Doug12

January 13, 2012 at 1:52pm

I am not a legal expert at all, but the reasoning in the memo seems logical to me. Beyond Noah's implicit claim that nominal and actual recess must be exactly the same thing, and beyond libref's problems with the various other commenters, I am having trouble seeing what exactly is wrong here. Mr. Noah? lib? Anyone? can someone explain to me exactly what's wrong with the DOJ memo?

- miceelf

January 13, 2012 at 2:09pm

"Because we say so." Oh, come on. This is a lengthy, reasoned analysis that relies on copious legal and historical sources. "Because we say so" is hardly a fair description. I also find tiresome the suggestion of something inappropriate in the fact that the memo "memorializes and elaborates" on a previously given legal opinion. Noah's response to that language was "Whatever." Right back at you, man! Is there any reason to suppose that Obama did not in fact seek a legal opinion before he made the decision? What's wrong with writing it up afterward? Nothing at all. As for the opinion itself, I think Noah is missing the main point, which is that, yes, legally speaking, if it walks like a recess (extended absence), and talks like a recess ("no business is to be conducted"), it's a recess, and the president gets to decide that because holding recesses without officially calling them that interferes with his constitutional appointment powers. Rough analogy: Suppose a supplier has agreed to make deliveries to a store on a regular basis so long as the store is open. The supplier arrives with a delivery, and finds the store locked and deserted. The store is functionally closed, and the supplier has the right to treat it as such, notwithstanding the fact that the sign in the window says "Yes, We’re Open," and, oh yeah, a janitor comes into the store every few days for a few seconds to flick the lights on and off for no reason. Look, the Constitution doesn't say one word about what counts as a "recess" or who gets to decide in the event of a conflict. Noah’s underlying assumption, which he doesn’t really defend, is that the Senate gets to decide that through its official actions -- by turning the sign to "Sorry, We're Closed," and flicking the lights on and off. But why should such a technical understanding prevail? One of the first things I learned about in law school is that American jurisprudence in a wide variety of areas long ago underwent a major shift from "formalism" to "functionalism," where, to oversimplify, judges generally paid more attention to substance and placed less reliance on form. This is thought to be a positive development, because the substance is what matters. Noah acknowledges that Republicans are playing games, and yet he can’t abide a legal interpretation that acknowledges them as such and declines to give them legal effect as a result. Why not? Why is Noah a legal formalist? What is wrong with a legal opinion that frankly acknowledges the fact of the matter, as the below past statement by the Senate Judiciary Committee (quoted in the opinion) does -- a nice example of "functional" legal reasoning? "It was evidently intended by the framers of the Constitution that [the word '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 the 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 can not receive communications from the President or participate as a body in making appointments. ... Its sole purpose was to render it certain that at all times there should be, whether the Senate was in session or not, an officer for every office, entitled to discharge the duties thereof." Noah says the opinion doesn't address his weekend recess problem. But it does indirectly address that issue by talking about the length of intrasession recesses where appointments have been made and/or seen as permissible, citing numerous past examples, which, if I remember right, seemed to reflect something around ten days as a minimum. Here, the recess was a long time -- 23 days. The DOJ doesn't have to offer an opinion as to how long the break needs to be to allow recess appointments. The important point is that, yes, "for Christ's sake," 23 days is long enough.

- JakeH

January 13, 2012 at 3:40pm

I've avoided reading Noah's simplistic posts, but this is too egregious to leave unremarked. Like many of the other commentators, I find this post little entirely lacking in the kind of reasoned, fact-based, expertise-informed thinking that is a hallmark of most of TNR's writers. I hope the editors have a sit-down with Noah and ask him why he is posting juvenile taunts such as "because we say so." And why he is doing so after admitting he has an "untrained legal mind" and after failing to challenge any of the perfectly defensible points listed. Noah's case, as best I can tell, is that there's no difference between the technical recess the Senate is asserting and normal weekends during sessions (this equation was also made in one of Noah's early posts on this subject). I'm astonished that such 8th-grade-level analogy appears to be the foundation for a public intellectual's critique of a well-justified action. If this slippery-slope argument is the basis, then why not wonder why Obama can't make recess appointments overnight? Or during lunch? Or when the Senate majority leader is on a bathroom break? Because, Noah, those are absurd examples with absolutely no historical precedent. Unlike the precedents amply laid out by the Department of Justice and numerous commentators. Now back to ignoring Noah. Please put "The Stump" and Cohn's blog above Noah's on the page.

- polcereal

January 13, 2012 at 4:17pm

Doug, I like your hypothetical, particularly the Flintstones part which seems just about right for members of Congress. However, I think I have to disagree with your conclusion. The purpose of the recess appointment clause is to provide for continuity of the executive functions and departments when Congress is not in session by permitting presidential appointments, for a limited period, without Senate confirmation. Given the purpose, I don't see why it should matter at all why the Senate is not in session, whether by decision or due to exigency. In the 18th century it would have been out of session a good part of the time due to the time required for members to travel too and from their homes, weeks in some cases. Nor should it matter whether the Senate is not in session in violation of either the constitutional requirement that it convene on January 3 or the requirement that it not go into recess (taking that to be an adjournment of more than three days) without the consent of the House. If it is not in session, it is not in session, and the functional need for an interim appointment is the same. In your hypothetical, it is also not the case that the Senate is prevented from convening because the chamber is unsafe. The Senate has met in other rooms in the past. The Old Senate Chamber (much more beautiful and impressive in my opinion than the current one) still exists. I think the Senate could convene anywhere it decides to convene, although perhaps confined within the boundaries of Washington, D.C. unless the city were destroyed. I also somehow do not believe that the very smart students of government who wrote the Constitution were oblivious to the possibility that the Senate might be inclined to prevent the President from making appointments by declining to act on them or turning them all down so as to cripple the President's ability to function. The fact that a long recess each year was then inevitable would have served as a check on this tendency. With the power to appoint until the "end of the next session," the President would be in a position to keep offices filled essentially at all times, through successive interim appointments. As soon as an interim appointment ended, a new recess would have begun and the recess appointment power would again be in effect. If the Senate were inclined to be obstructionist, as the Senate is today, it would therefore have every incentive to consider Presidential appointments on their merits and bring them to a vote. On balance, the Constitution regards appointments as a Presidential prerogative, not a Senate prerogative. It makes sense therefore to ensure that the President can appoint officers whose term in office will not last past the current administration, as would be the case with recess appointments. For appointments to last beyond the current administration, they would have to be confirmed by the Senate. All in all, a very sensible balance of powers. Taken to an extreme, it would also mean that the President would be unable to appoint judges with life tenure unless his party were in control of the Senate. Not a terrible outcome. I don't see why the President does not make much more extensive use of the recess appointment power.

- roidubouloi

January 13, 2012 at 6:14pm

Well said, both JakeH and polcereal. And micelf poses exactly the right question: "I am having trouble seeing what exactly is wrong here. Mr. Noah? lib? Anyone? can someone explain to me exactly what's wrong with the DOJ memo?" That no one who claims the President's appointments are constitutionally dubious seems able to offer any serious, reasoned argument as to the errors in the DOJ memo speaks volumes.

- roidubouloi

January 13, 2012 at 6:27pm

TN, I have to agree with the criticism expressed by many of the commenters. I was willing to shrug off your first post on this subject -- maybe even your second. But you just won't stop. And, even worse, each post seems to get more and more juvenile. I beg you to please drop this topic....for good.

- JSAYKO@EXCITE.COM-old

January 17, 2012 at 3:09pm