Dale Franks’ QandO posts
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:
"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.
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.
Today’s economic statistical releases:
Factory orders rose 1.8% in November, mainly on aircraft orders. Ex-transportation, orders rose 0.3%.
A short week and seasonal adjustments aside, the MBA reports that mortgage activity declined, as mortgage applications fell by -3.7%. Purchase applications fell a steep -9.7%, while re-finance apps dropped by -1.9%.
In weekly retail sales, ICSC-Goldman Store Sales rose a strong 1.2% over the last week, and 5.3% over last year. Likewise, Redbook reports a year-over-year same-store sales increase of 4.9%.
Today’s economic statistical releases:
The ISM Manufacturing Index rose to 53.9 from last month’s 52.7, as manufacturing growth accelerated. This confirms the reports released last week from the various Fed regions, most of which showed manufacturing growth.
Construction spending has been volatile, but the latest month shows a monthly increase of 1.8%, and a year-over-year increase of 0.5%.
Mark Steyn makes an interesting—indeed, vitally important—point about government spending. The Left is always keen on telling us that we are under-taxed, or that the "rich" aren’t paying their fair share, or some such nonsense. We’ve argues long and hard here that what we face is not a revenue problem, but a spending problem. Mr. Steyn pithily sums up an important bit of evidence for that assertion.
The total combined wealth of the Forbes 400 richest Americans is $1.5 trillion. So, if you confiscated the lot, it would barely cover one Obama debt-ceiling increase.
That’s really the problem in a nutshell. This week, the President asked for a $1.2 trillion debt increase. We could pay for it, I suppose, by confiscating all the wealth of the Forbes 400, and have a nice $300 billion left over…but there won’t be too many people left that we can soak to cover the next debt ceiling increase. Also, as a point of academic interest, President Obama’s debt ceiling increase is $200 billion more than the entire national debt was in 1980.
To the extent we do have a revenue problem, perhaps it’s not that the rich pay too little, but rather that the poor do. 47% of American’s don’t pay any income tax at all. Which means that the "soak the rich" argument can really be boiled down to the 47% of Americans that don’t pay income taxes think the remaining 53% aren’t paying their fair share.
Well, someone isn’t, at any rate.
At the deepest levels within our governing structures, we are committed to living beyond our means on a scale no civilization has ever done. Our most enlightened citizens think it’s rather vulgar and boorish to obsess about debt. The urbane, educated, Western progressive would rather "save the planet," a cause which offers the grandiose narcissism that, say, reforming Medicare lacks.
And reforming Social Security, while we’re at it. Which we aren’t. And which, combined, will eat up the entire Federal budget in the not-too-distant future.
Something that can’t go on forever, won’t. It’d be great to have a first-class military, generous Medicare and Social Security benefits. Along with all the rest of the coddling state that supports in the grand manner to which we’ve become accustomed. But the future won’t allow us to be that generous. You see, we’re heading to a $16.5 trillion national debt, because, instead of being prudent with our money in order to meet all those future obligations, we blew it.
We spent money we didn’t have to build carrier groups and JDAMs, No Child left Behind and Medicare Part D. At the current rate, the federal government will, sometime this century, consist of a single department that does nothing but collect taxes and issue Social Security checks, because there won’t be one red cent left over for Defense, Justice, State, Commerce, Agriculture, or Treasury. And, we probably won’t be able to afford even that.
Mainly, because we won’t be able to produce much of anything.
Last January, the BBC’s Brian Milligan inaugurated the New Year by driving an electric Mini from London to Edinburgh, taking advantage of the many government-subsidized charge posts en route. It took him four days, which works out to an average speed of 6 mph — or longer than it would have taken on a stagecoach in the mid-19th century. This was hailed as a great triumph by the environmentalists. I mean, c’mon, what’s the hurry?
What indeed? In September, the 10th anniversary of a murderous strike at the heart of America’s most glittering city was commemorated at a building site: The Empire State Building was finished in 18 months during the Depression, but in the 21st century the global superpower cannot put up two replacement skyscrapers within a decade.
The 9/11 memorial museum was supposed to open on the 11th anniversary, this coming September. On Thursday, Mayor Michael Bloomberg announced there is "no chance of it being open on time." No big deal. What’s one more endlessly delayed, inefficient, over-bureaucratized construction project in a sclerotic republic?
This is—as hard as it may be to believe—the same country that, in 1940, had an army smaller than Rumania, and by 1945, had the military power to, had we wanted, rule the globe. Now, we’re the country that can’t replace the World Trade Center in 10 years. This is not emblematic of a can-do country with the willingness to attack and solve problems with a vengeance.
But the president thinks that if we can only tax millionaires more, we can fix this place up quick.
Today’s economic statistical releases:
In a Dec 24 week clouded by the need for estimates, initial unemployment claims rose 15,000 to 381,000. Despite that, the 4-week moving average fell 5,750 to a 375,000, the eighth decline in 9 weeks.
The Chicago Purchasing Managers Index remains steady at 62.5 this month, but new orders are especially strong at 68.0.
The Bloomberg Consumer Comfort Index dropped to -47.5 last week, down from a reading of -45.0 last week.
Low prices and mortgage rates are boosting the housing sector, pushing the pending home sales index up 7.3% to 100.1.
The Kansas City Fed Manufacturing Index was supposed to be released this morning, but apparently, the Fed is delaying the release. Probably holiday-related issues.
UPDATE: The Kansas City Fed Manufacturing Index was much lower than expected, coming in at -4, vice analysts’ expectations of 6.
The weekly retail sales reports are the only releases today. Both ICSC-Goldman and now Redbook report strong sales during the last week. Redbook reports a strong year-over-year sales rate increase of 4.3%. ICSC-Goldman has store sales up 0.9% for the week and 4.5% for the year.
Today’s economic statistics releases:
S&P/Case-Shiller reports home prices are still trending downwards, with prices down -0.6% last month, following last month’s -0.7% decline.On a year-over-year basis, prices have dropped -3.4%.
Optimism on jobs and income resulted in a 9.3 point rise in consumer confidence, with the index at 64.5 for December.
The Richmond Fed Manufacturing Index came in at 3, showing mildly positive manufacturing expansion in the Richmond Fed district. This confirms similar readings from both the Philly Fed and Empire State surveys, both of which also showed mild manufacturing expansion. Conversely, the Dallas Fed reports that manufacturing activity in Texas declined in December as the general business activity index dropped to -3.0 from 3.2 in last month.
Investor confidence remains steady according to the State Street Investor Confidence Index, which holds steady at 99.3.
Today’s economic statistical releases:
A big surge in civilian aircraft pushed durable goods orders up 3.8%. Ex-transportation, orders rose 0.3%. On a year-over-year basis, orders were up 12.1% overall, and 7.2% ex-transportation.
Both personal income and personal spending rose by 0.1% in November.
New home sales rose 1.6% in November to a 315,000 annual unit rate. Over the last few months, sales have picked up modestly, but from a very low levels, and house prices have continued to decline,m down 3.8% last month to a median price of $214,100.
Today’s economic statistical releases:
The Commerce Department’s 3rd estimate of 3Q GDP was again revised downwards, to a 1.8% annualized rate.On a year over year basis, GDP was up 1.5% over 3Q 2010. The downward revision was led by a smaller decline in inventories and less growth in personal consumption.
Initial claims for unemployment fell for the 3rd consecutive week, down 4,000 to a much lower-than-expected level of 364,000. Continuing claims fell 79,000 to 3.546 million, the lowest level of the recovery.
The Chicago Fed National Activity Index fell to -0.37 in November from a revised -0.11 in October. Housing is still heavily negative in the report.
The Bloomberg Consumer Comfort Index climbed to -45 in the period ended December 18 from -49.9 the prior week.
Consumer sentiment continued to improve, to 69.9 in December from 64.1 in November.
The FHFA reported that house prices in October unexpectedly declined -0.2% after rising 0.4% in September. Analysts had expected a 0.3% rise in prices, not further downward price pressure.
The index of leading economic indicators rose 0.5% in November following October’s 0.9% increase. Positive elements include the treasury rate spread, building permits, consumer expectations, building permits, and falling unemployment claims.