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Daily Archives: January 5, 2012

Obama’s recess appointments II (Updated)

President Theodore Roosevelt made more than 160 recess appointments during a Senate break of less than a day in 1903. According to the Congressional Research Service (PDF):

[T]he President made recess appointments during a transition between sessions of less than a day in length, where no concurrent resolution regarding the transition between sessions had been adopted. In fact, it appears that little time elapsed between the sessions on this occasion. When the first session of the 58th Congress ended, at noon on December 7, 1903, and the second session began soon thereafter, President Theodore Roosevelt made over 160 recess appointments—mostly of military officers. President Roosevelt treated the period between these sessions as a “constructive recess.”

This particular case, the "recess" was literally seconds long. The Senate was not pleased, and 14 months later issued a report that condemned the President’s actions in that particular case; however (PDF):

The 1905 Senate Judiciary Committee Report was issued fourteen months after this action and, as is indicated by the quotation included above, emphatically rejected Roosevelt’s action. It is important to note, however, that the Report, while expressing disapprobation of the President’s exercise of the recess appointment power in such a manner, could be interpreted as validating the execution of intrasession recess appointments generally. Furthermore, Roosevelt’s actions could be viewed as a practical manifestation of the potential infirmities of the Knox interpretation: that is to say, if a formalistic interpretation of the Clause rests upon a concern that allowing intrasession appointments will foster systematic avoidance of the Senate’s advice and consent function, the fact that a President is able to make such appointments during an instantaneous “constructive recess” of the Senate would appear to belie such a distinction.

Indeed, part of the relevant language of that report states:

It was evidently intended by the framers of the Constitution that [“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 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 cannot receive communications from the President or participate as a body in making appointments. – Senate Report No. 58–4389, at 2 (1905).

At the very least, a colorable argument can be made that the mere existence of pro-forma sessions held for the specific purpose of disallowing recess appointments, during a time when the Senate is unable to meet to discharge its advice and consent functions, is itself an unconstitutional usurpation of the president’s Constitutional powers. There is nothing in the Constitution to indicate the president’s recess appointment power is any less important than the Senate’s advice and consent power.

President Roosevelt’s “constructive recess”, which took place between 12:00pm and 12:01pm on 7 December, 1903 surely seems a stretch of the idea of what a recess is. But, in the proximate case of President Obama it just as surely a stretch to argue that the Senate was "in session" while it was unable to meet to conduct any business.  Indeed, the specific adjournments about which we are concerned here explicitly stated that no business would be conducted.

Madam President, I ask unanimous consent that when the Senate completes its business today, it adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Tuesday, December 20, at 11 a.m.; Friday, December 23, at 9:30 a.m.; Tuesday, December 27, at 12 p.m.; Friday, December 30, at 11 a.m.; and that the second session of the 112th Congress convene on Tuesday, January 3, at 12 p.m. for a pro forma session only, with no business conducted, and that following the pro forma session the Senate adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Friday, January 6, at 11 a.m.; Tuesday, January 10, at 11 a.m.; Friday, January 13, at 12 p.m.; Tuesday, January 17, at 10:15 a.m.; Friday, January 20, at 2 p.m.; and that the Senate adjourn on Friday, January 20, until 2 p.m. on Monday, January 23; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders be reserved for their use later in the day; further, that following any leader remarks the Senate be in a period of morning business until 4 p.m., with Senators permitted to speak therein for up to 10 minutes each, and that following morning business, the Senate proceed to executive session under the previous order.

As John Elwood puts it at the libertarian/conservative legal blog "The Volokh Conspiracy":

Concluding that such pro forma sessions (which by design are not for conducting business) interrupt the recess of the Senate and thus prevent recess appointments would present a risk to separation of powers because it would allow the Senate unilaterally to frustrate the President’s exercise of a power granted him by the Constitution, which the Framers considered to be important to keep the government functioning by filling offices.  Cf. McAlpin v. Dana, No. 82–582, slip op. at 14 (D.D.C. Oct. 5, 1982) (“[T]here is no reason to believe that the President’s recess appointment power is less important than the Senate’s power to subject nominees to the confirmation process.”).

So, it is far from clear that it was the President, rather than the Senate, who was acting in a manner that violated the Constitutional separation of powers.

Alas, the case of the Cordray nomination still has an unfortunate wrinkle for the president. The specific statutory language of Section 1066 of Dodd-Frank states that the functions of the CFPB cannot be turned over from the Secretary of the Treasury “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.” Section 1011, in turn, states: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”

So, while the president arguably has the power to make recess appointments during pro-forma sessions of the Senate, the statutory language of the law provides that the CPFB cannot be created as an independent agency until after its first Director is confirmed by the Senate. In effect, this means that, while the president may make a recess appointment to the CPFB post, the Bureau that post oversees cannot actually be created until the Director is confirmed by the Senate. So, according to the statute, Mr. Cordray is the bureau chief of a non-existent bureau, until he can be confirmed. So, I hope they can find a nice office for him somewhere, with a comfortable napping couch.

This, in turn, brings up the question of whether sections 1066 and 1011 of Dodd-Frank consist of an unconstitutional violation of the separation of powers by impeding the president’s power to make recess appointments.

But, I’m pretty sure I don’t want to get into that issue at this point.

What should be clear, though, is that President Obama’s recess appointments are, in fact, arguably legal and constitutional, while the practice of pro forma sessions designed to prevent recess appointments are arguably illegal and unconstitutional.

Moreover, the Congress has a number of options for overturning the appointment of Mr. Cordray. They can refuse to fund the CFPB until he is confirmed. They can impeach him. As a recess appointee, they can reduce his pay to nothing.

The bottom line is that there are substantial tensions to recess appointments, and a historical lack of clarity as to what the scope and limits of recess appointments are. When both houses agree to adjourn and hold themselves in recess, the president’s power to make such appointments is unquestioned. But it is certainly unclear that it is constitutional for the Senate to adjourn sine die for weeks at a time, except for pro forma sessions at which no business is conducted and no quorum is present, in order to specifically impede the president’s recess appointment powers.

Whatever the actual practice has been in terms of when presidents made recess appointments, or whether presidents in the past have accepted the practice of pro forma sessions, or even whether someone argued a different view about such appointments in the past, is entirely irrelevant.  It might be instructive to know these things in order to make personal judgments about the character of the respective parties, but it has nothing whatsoever to do with the constitutional issues at hand.

The only relevant questions are, is the Senate in session or is it not?  Is the Senate in session when no quorum is present, the members are not available to meet, and no business is conducted for weeks? Is the Senate in session when it is incapable of providing the advice and consent function for weeks? If the answer to those questions is "no", then the Senate is in recess as a practical matter and pro forma "sessions" are nothing more than a sham with but one design: to subvert the Constitution. That is true whether the president is George W. Bush or Barack H. Obama.

Update: Commenter Pogue Mahone notes another Congressional Research Service opinion (PDF) that specifically states the initial appointment of the CFPB director can, in fact, be made via recess appointment:

Footnote 3:
"P.L. 111-203 § 1011. Although the CFP Act requires the CFPB Director to be confirmed by the Senate, the President could appoint a Director temporarily without Senate confirmation through his constitutionally provided power to make recess appointments. See U.S. Const., art. II, § 2, cl. 3 (“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.”). A recess-appointed Director likely would be considered to have all of the authorities that would be held by a Senate-confirmed Director.

I have, however, seen other legal analyses that say otherwise. Note the word "likely" in the last sentence, above.

Again, my argument is not that the president can’t appoint the director via recess appointment, but that it can be argued the agency’s powers can’t be transferred to the CFPB until the statutory requirement is satisfied. He can be appointed the director of all he surveys, and still have no legal power, no salary, and no agency until the letter of Dodd-Frank is satisfied. The treasury Department could whip him up some spiffy business card, though. Unless congress defunds that, too. That’s a possibility some legal scholars are arguing, anyway.

I think, however,  CRS opinion is correct. The "advice and consent" phrase is pretty pro forma, and reflects the usual nomination/confirmation process, rather than setting up a specific ban on the recess appointment. Certainly, I’d presume the Constitutional recess appointment power would trump the statutory language. It’s amusing to ponder, but it seems pretty clear that a recess appointment to a non-existent position is effectively no appointment at all. Not that there wouldn’t be plenty of lawyers happy to argue otherwise.

Dale Franks
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Economic Statistics for 5 Jan 12

Today’s economic statistical releases:

Auto Sales were mixed last month, coming in at a 13.6 million annual rate, the same as November. Light vehicle sales rose 2.8%, however, the best since the "Cash for Clunkers" program expired in August 2009.

Chain stores are reporting sales throughout the day today. So far, about 1/2 of the reporting stores show improved year-on-year sales from last month. Additionally, some chains are raising their investor guidance following the sales results, confirming improved profitability and sales.

The Challenger Job-Cut Report shows that layoff announcements totaled 41,785 in December. That’s right on trend for the last 3 months.

The ADP Employment Report indicates a big increase in private payroll growth, to 325,000 new jobs for December. While I suspect the overall December Employment Situation, which the BLS will release tomorrow, will be at least mildly positive, 325,000 new jobs seems like a stretch for the month. December’s always a tricky month anyway, due to seasonal employment, and the adjustment factors that try to account for it. A BLS increase of 160,000+ new jobs wouldn’t surprise me tomorrow, though, nor would a tick down in the Unemployment rate.

Initial jobless claims fell 15,000 last week to 372,000 from the prior week’s revised 387,000 (an upward revision of 6,000).

The Bloomberg Consumer Comfort Index rose to -44.8 in the period ended January 1 from -47.5 the prior week.

The ISM’s Non-Manufacturing Index rose slightly to 52.6, below expectations for 53.4, and only 0.6 higher than last month.

Dale Franks
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California: High speed rail boondoggle could make the “Big Dig” seem like a day at the park

Good old California, probably the most debt ridden state in the union, and it still can’t manage to break its big spending ways.  It certainly seems intent on wasting buckets of money it can ill afford on a poorly conceived public project.

Ed Morrissey:

When the California legislature undertook the most expensive public-works project in American history, they also created an independent review board to ensure that the LA-to-San Francisco high-speed rail project would have solid financial footing.  Perhaps they intended this panel to be a public-relations rubber stamp, but if so, it just proves that their miscalculations weren’t limited to cost projections.  Yesterday, the California High-Speed Rail Peer Review Group sent a “scathing” letter to the political leadership in Sacramento, calling the project’s finances and costs “fundamentally flaw[ed]”.

What did the letter say?

In a report Tuesday, a panel of experts created by state law to help safeguard the public’s interest raised serious doubts about almost every aspect of the project and concluded that the current plan “is not financially feasible.” As a result, the panel said, it “cannot at this time recommend that the Legislature approve the appropriation of bond proceeds for this project.”

The project’s newest “official cost” is $98.5 billion, three times the original “official estimate” of $33 billion.  Of course the Rail Authority thinks the panel is full of beans.  And Governor Jerry Brown?

Brown spokesman Gil Duran said in an e-mail that the Peer Review Group’s report “does not appear to add any arguments that are new or compelling enough to suggest a change in course.”

Of course he doesn’t.  Because Moonbeam, elected to get the California financial house in order, sees nothing wrong with another hundred or so billion in debt for  a debt strapped state.

The intent is obviously to go forward with this boondoggle regardless of its feasibility.  Morrissey points out, the board was intended to be a device to appease critics and to rubber stamp the project.  The fact that it hasn’t worked out that way is inconvenient, but is not going to stop something that they really want.   The fact that the voters voted to do a project with a $33 billion dollar price tag in 2008 and has now seen that estimate triple should provide more than enough of an argument whether “new” or not, to stop the California equivalent of the “Big Dig”.


Sounds like California’s political class has learned nothing from their financial travails of the last several years.

What sounded “feasible” in 2008 is obviously anything but feasible, financially, in 2012, especially when the projected cost has tripled since its voter approval.  That alone makes it infeasible.  It completely changes the game.  It is a classic “bait and switch” – a lowball estimate to gain approval and a commission which no one obviously planned on listening too empaneled to give the project of veneer of accountability.

But as usual, politicians have again decided to ignore reality and go ahead with an unnecessary and hugely expensive boondoggle despite mounting evidence, and cost, that it should be abandoned.

You just read about things like this and shake your head.  What in the world is wrong with those people?  What part of “we can’t afford this sort of nonsense anymore” do you suppose they don’t understand?  Or is it they just don’t care?  Politics and an agenda, coupled with crony capitalism, overrule common sense once again.


Twitter: @McQandO

Obama’s recess appointments

Its been something that all recent modern presidents have had to go through – nominees for office have been held up or blocked by the legislative branch in their “advise and consent” role for various reasons.   Frankly, I’ve been of the opinion that leaders should be able, within reason obviously, to appoint who they wish to political positions their election entitles them to fill. Elections have consequences.

However that’s not the reality of the situation, is it?  Both sides play this game.  And believe it or not there are “rules” or precedence which guides even this process. 

One of the things that has become crystal clear is that despite all the previous rhetoric from then candidate Obama about the “executive president” and how George W Bush was abusing his power, Obama the president has no qualms about doing what Bush did and more.

Signing statements, something Obama condemned on the way to the White House, are now routine for the Obama administration. 

As for these most recent recess appointment?  Well, it’s a matter of timing, and again this administration has decided it will simply do what it wishes, regardless of the law:

Obama infuriated Republicans Wednesday by announcing the recess appointment of Richard Cordray to be the first director of the Consumer Financial Protection Bureau (CFPB). Senate Republicans had blocked Cordray’s nomination for months, so the president bypassed them with a recess appointment during the holiday break.

He followed that up later in the day with recess appointments for three members of the National Labor Relations Board (NLRB), heading off another likely GOP filibuster.

The recess appointments broke with legal precedent, as they while the Senate is holding regular pro forma sessions. Republicans insist the Senate has not been in recess thanks to the seconds-long sessions held every few days, but White House attorneys determined the procedural move is a gimmick that can be ignored by the president.

These are the same White House attorneys who also previously said just the opposite.  Jim Treacher brings us up to date:

But the appointments may have been illegal, according to past administration statements. Obama’s own lawyers publicly stated in a 2010 exchange with Supreme Court Chief Justice John Roberts that the president doesn’t consider a congressional recess official — meaning he can’t legally exercise his recess appointment power — until Congress has been gone for three full days. ‘The recess appointment power can work in — in a recess,’ Obama’s Deputy Solicitor General Neal Katyal said. ‘I think our office has opined the recess has to be longer than three days [to make an appointment].’ The Senate entered a recess on Tuesday, after having held a pro forma session to keep Obama from making any recess appointments. Another was planned for Friday. By making the appointments just one day after the Senate went into a recess, Obama appears to breaking his own administration’s rules and, as scores of Republicans are quick to point out, decades of executive precedent."

And, of course, the usual hypocrisy is afoot:

According to The Hill, Obama’s move breaks from 20 years of precedent while violating a policy established under fellow Democrat and former President Bill Clinton’s administration.

During the Bush administration, Senate Majority Leader Harry Reid denounced recess appointments and conducted the same pro forma Senate sessions. It’s unclear what, if anything, Reid will say or do about Obama exhibiting a disregard for his advice.

In an update, Treacher reports:

Reid has backed Obama’s decision to make the recess appoints, contradicting his previous arguments about how recess appointments are “mischievous.” A spokesperson for Reid didn’t immediately return The Daily Caller’s request for comment on whether Reid has a new, enlightened argument or is just playing partisan politics to help Obama.

I’m sure Majority Leader Reid has a splendid explanation for now saying precisely the opposite of what he was saying under a GOP administration while he held the same position.

Nothing like the rule of men instead of the rule of law, no?

It makes life so … interesting, doesn’t it?  

As for the Constitution, it is now available in the White House shop in convenient toilet paper rolls.


Twitter: @McQandO