On May 26, the New York Times published an editorial claiming, “Senate Republicans have gone out of their way to make themselves effectively unavailable, refusing to confirm nominees to agencies whose missions they oppose.”
This Republican recalcitrance has, the editorial asserts, forced President Obama to “make many recess appointments.”
Citing several recent judicial setbacks for the president’s interpretation of the Constitution's Appointment Clause of Article II, Section 2, the New York Times editorial board warned that “If allowed to stand, the two court decisions, both of which hinge on the definition of “recess,” could jeopardize more than 900 rulings by the [National Labor Relations Board].”
Using a potent parliamentary tactic, both houses of Congress have acted to keep the legislative branch in “pro forma” session throughout several breaks in order to prevent President Obama from bypassing the advice and consent of the Senate by making what are known as recess appointments.
First, one must understand the notion of the Congress being in session “pro forma.” According to the parliamentary rules governing the business of Congress, either or both houses of that body may hold a “pro forma” session during which no formal business is conducted. There are a couple of primary reasons why this would be desirable. First, such sessions may be necessary to fulfill the constitutional stricture that:
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. [Article I, Section 5]
Additionally, congressional leadership often employs this gambit as a delay tactic in order to foil presidential attempts to execute a pocket veto of a bill, to call a special session of Congress, or to make recess appointments in the executive or judicial branches as per the authority given the president in Article II.
The next step in the analysis of whether recess appointments are constitutionally sound is to examine the constitutional basis for the practice. Article II, Section 2 of the U.S. Constitution states:
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.
The plain language of that clause seems to authorize the making of what we call recess appointments. That is to say, if the Senate is in recess, then the president is within the sphere of his constitutionally enumerated powers to fill a vacancy that will be valid until the end of the next congressional session.
To constitutionalists, an important next step in the analysis would be to discover the intent of the Founders regarding their inclusion of this clause in the Constitution. In the early days of the Republic, the recess periods between congressional sessions lasted months, sometimes as many as nine. Such lengthy breaks made the use of recess appointments necessary in order to prevent necessary offices from remaining unfilled for so long a period.
For example, George Washington took advantage of this authority when in 1795 he appointed John Rutledge of South Carolina to the Supreme Court during a congressional recess. Upon returning to work, the Senate rejected Rutledge, utilizing its own right to exercise advice and consent over the nomination of federal officers.
By contrast, President Obama has made frequent and controversial use of the recess appointment clause since taking office in 2009. He has made at least 29 recess appointments during his administration. Several of these have been thereafter confirmed by the Senate, while many (including the controversial naming of Donald Berwick to be the administrator of the Centers for Medicare and Medicaid Services) have not.
Now on to the notion that Senate “pro forma” sessions are obstructionist and unconstitutional. In The Federalist, No. 68, Alexander Hamilton writes of the recess appointment clause:
The ordinary power of appointment is confided 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 should expire at the end of their next session."
What, then, was the role the Senate was designed to play in the nomination and appointment process? Again, we turn to The Federalist Papers and Alexander Hamilton:
To what purpose then require the co-operation of the senate? I answer, that the necessity of their concurrence would have a powerful, though in general, a silent operation. It would be an excellent check upon a spirit of favouritism in the president, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connexion, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
In the preceding quotes from the Federalist Papers, Hamilton makes it clear that while the president is able to make appointments without the advice and consent of the Senate during recesses, there is greater wisdom to be found (and safety for our Republic) in placing the Senate as a check on the “spirit of favoritism” on the part of the president.
A subsequent and important question would be, then, has the current president displayed that spirit of favoritism in his nominations to fill vacancies, particularly those made during Senate recesses? Given the number of rejections of those nominees, it would certainly seem that if nothing else, he has displayed a zeal for naming potential appointees who are very unlikely to be approved by the full Senate. This would seem to indicate an understanding on the part of the president that the only way to get such persons into office and allow them to make official acts according to their own or the president’s controversial agenda is to appoint them during recesses.
Detractors disagree. The New York Times article reported:
In April, Solicitor General Donald Verrilli Jr. asked the Supreme Court to review the ruling, arguing: “That decision repudiates understandings of the Recess Appointments Clause that have been maintained and relied on by the Executive for most of the Nation’s history. The limitations imposed by the court of appeals would render many of the recess appointments since the Second World War unconstitutional.”
With all due respect to the “newspaper of record” and to Solicitor General Verrilli, there is no constitutional prohibition on “pro forma” sessions of Congress, and given the president’s predilection for making extremely dubious nominations during Senate recesses, it seems consistent with “constitutional order” and with the intent of the Founders to allow the Senate to continue to use all constitutionally sound means to block this scheme and to prevent “the appointment of unfit characters” to fill federal vacancies.
A quote from an article published last year by the San Francisco Chronicle hints that while the president understands that the Senate has a constitutional duty to check his power, he will not allow the exercise of such to impede the growth of government.
"Administration officials and lawyers insist President Obama made the appointments because Senate Republicans were unfairly blocking Senate confirmation of nominees as a way to limit the [National Labor Relations Board’s] power," the Chronicle wrote.
Perhaps, but opposition doesn’t qualify as recess.
Neither President Obama’s immeasurable regard for his own moral, legal, and intellectual superiority nor the learned opinion of the New York Times editorial board can convert Senate reluctance into Senate recess.
Photo of President Obama: White House