Free Markets, Free People

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.

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Dale Franks
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12 Responses to Obama’s recess appointments II (Updated)

  • The “advice and consent” in sec. 1011 is merely a recitation of the normal appointment procedure. Nothing new there; it’s not adding any new requirement.

    And if you’re fond of the Congressional Research Service, check this out…
    http://www.llsdc.org/attachments/files/314/CRS-R41839.pdf

    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. CRS Report RL33009, Recess Appointments: A Legal Overview, by Vivian S. Chu. Another avenue for temporarily filling positions that normally require the advice and consent of the Senate, the Vacancies Act (5 U.S.C. §§ 3345-3349d), likely could not be utilized by the President to fill the CFPB Director
    position for the first time because the Vacancies Act appears only to apply to positions that are open because of
    resignation, death, or some other inability of the prior holder to serve—not to newly established positions that no one
    has previously held. See, e.g., S.Rept. 105-250, at 14 (1998), available at http://www.gpo.gov/fdsys/pkg/CRPT-
    105srpt250/pdf/CRPT-105srpt250.pdf (“The 150 days runs from the ‘vacancy’ referring to the death, resignation, or
    beginning of inability to serve of the Senate-confirmed officer. This meaning of ‘vacancy’ applies each time it is used
    in the legislation.”

  • This is a great analysis. Thank you.

  • What about the Constitutional clause that prohibits either Congressional body from going on recess without approval of the other body? The House has explicitly not given approval for the Senate to be in recess…

    • @jonbig So, both houses can conspire to remain “in session”, irrespective of whether a quorum of members are present, and perpetually prevent the president from ever making recess appointments?

      • Didn’t say that, but the issue does need to be addressed, since it adds more color to what “being in session” means. Clearly the purpose of the Founders was to prohibit one house from frustrating the other body’s attempt to conduct business.

        I’m with you, though. I’d gladly trade recess appointments for a requirement for an up or down vote within a reasonable time limit by the Senate (60 days is probably too short). However, I think your proposed penalty for failure to conduct a vote is too harsh. It’s enough to just state that no vote means consent.

        • @jonbig Agreed, since the only way Amendments have ever passed is when they have been introduced by Congress, it’s unlikely they are going to put themselves in such a corner. We could call for a Constitutional Convention, but I really don’t think this issue is sexy enough to make that happen.

    • @jonbig That may not be precisely accurate. According to U.S. Constitution, Art. 1, §5, cl. 4. “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.”
      As you can see, this does not define recess, it simply defines how long a body can ajourn without the consent of the other. It could be read to say that a body may take a recess of less than 3 days without consent of the body, or not?

      • One could also argue that the Presidential “recess appointment” power is being abused here snice the Constitution says: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate…” that the words “the recess” refer to a sinificant pre-planned long break of several days, not any arbitrarily short suspension of proceedings. It clearly intends for the power to be used when it is physically not possible to assemble the Senate within a few days. In modern times, that’s essentially never.

        Obama has specifically abused his power here by only sending the nomination for the NLRB appointments to the Senate 2 days before their planned holilday recess even though he had plenty of time to submit their appointments much, much earlier.

  • The President has the power to fill a vacancy, but is the appointment to a new bureau within the government “filling a vacancy” ?