In Part 1, I detailed my issues with the structure of the Consumer Financial Protection Bureau (CFPB). Obama’s recess appointment of Richard Cordray to lead the CFPB presented a good opportunity to discuss the bureau. He also did three more recess appointments to the National Labor Relations Board (NLRB). I didn’t explore the NLRB is the last post because it’s a whole other topic, and I deliberately abstained from the question of whether any CFPB structure is necessary to focus on the current CFPB structure. Now that I’ve beaten the CFPB structure to death, what about Obama’s recess appointments?
It’s yet another example of Obama’s questionable interpretations of the Constitution and another great example of the mentality that the ends justify the means. It only took him four days into 2012 to challenge the Constitution. To see why, a little background on recess appointments is in order.
Recess appointments are used by the President when Congress is on recess to fill vacant seats that arise during recess like directors and judges. So, there are two key questions here. First, assuming Congress truly is in recess, is the President acting within his power? Second, is Congress truly in recess?
Let’s look at the power question first before we attempt to answer the recess question. The executive power is detailed in Article II, Section 2 of the Constitution:
“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 clearly referring to openings that materialize during the recess, not openings that existed before the recess. In other words, if a vacancy opens up during recess, then the President is allowed to fill it. The language does not allow the President to fill a vacancy that was already open before Congress went to recess. It was worded this way to prevent the executive branch from installing an appointment that Congress rejected (you’ll see Congress’ counter to this executive branch trickery a bit later). This makes perfect sense because when the Constitution was first written, communication and travel were much slower, thereby making it impossible to quickly convene Congress from recess. Today, Congress could probably be sufficiently assembled within a day or less. We see the design of the checks and balances, but we also plainly see how the executive branch is undercutting the legislative branch.
Not only do we see the President attempting to use power he doesn’t actually have, we also see is the President attempting to act out of turn. Obama is trying to do this by saying that Congress is actually in recess when Congress says they’re in session. Now, we need to look at Congress’ recess mechanics in the Constitution and we’ll see that Obama is wrong here, too.
Here’s where it gets fun. In order for a house of Congress to be in recess, it has to be adjourned for more than three days for the purpose of exercising the recess appointment power. But, wait, there’s more. The Constitution explicitly states in Article I, Section 5, “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.” This means the House of Representatives has to allow the Senate to be in recess during the session and vice versa.
The House of Representatives has withheld its consent, so the Senate is not in recess. The Senate then withdrew any request for recess and put itself in pro forma session. It’s basically a way the Senate can keep itself officially in session, but not really doing valuable work (as opposed to their normal state of not doing any valuable work). Pro forma session is kind of like idling a car. The engine’s still running, but the car’s not driving. The car can’t idle forever, so it has to be shut down periodically to refill the gas tank before it can be turned back on. The Senate has scheduled several pro forma sessions. Recess, on the other hand, is more like parking the car in the garage for a few days and leaving it there without running it. The Senate is not out of session long enough for them to be considered to be in recess.
Let’s look at some arguments from the other side, those who claim this is acceptable. I saw an article by Gary Weiss claiming Obama was acting legally here. The author cited Article II, Section 3 in the following manner: “He [the President] may adjourn them to such Time as he shall think proper.” Here’s the problem. Weiss is wrong and didn’t fully quote the relevant excerpt of the Constitution. The full excerpt reads:
“[H]e may, on extraordinary Occasions, convene both Houses, or either of them,
and in Case of Disagreement between them, with Respect to the Time of Adjournment,
he may adjourn them to such Time as he shall think proper;”
The President may adjourn Congress if and only if there is a disagreement between the two houses of Congress regarding adjournment. We don’t have disagreement between the two houses here. Remember, the Senate put itself in pro-forma session after withdrawing any recess request and the House of Representatives has not requested a recess. Thus, neither house is attempting to recess and both agree. Again, this makes sense because it should generally fall on Congress, not the President, to determine when Congress is or is not in session.
Here are some other thoughts on the matter. More recently, the Department of Justice (DOJ) issued a 23-page opinion found here. I wanted to wait to do this post until I got to review this. Basically, they’re arguing that Obama is allowed to do these recess appointments because pro forma session doesn’t sufficiently interrupt a recess. They’re arguing that Congress is unable to perform its advise/consent function while in pro forma session.
Two things strike me here. First, the opinion was issued after the appointments were made versus before. Second, then-Solicitor General (and current Supreme Court Justice) Elena Kagan sent a brief from the DOJ to the Supreme Court stating, “the Senate may act to foreclose [recess appointments] by declining to recess for more than two or three days at a time over a lengthy period.” I have not been able to find a link to the brief itself, however. Very briefly, there's noting in their opinion that convinces me the Obama administration is acting legally.
No court has ever directly addressed this question, so we’ll have to sit back and watch the drama unfold. I think it’ll be interesting. My opinion remains that Obama has once again acted unconstitutionally and has put reelection politics above the rule of law in attempting these appointments, first by using the recess appointment power too broadly to cover appointments it is not intended to cover and then by attempting to use the recess appointment power when Congress is not in recess.
Links:
Weiss article:
Department of Justice memo:
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