Are Obama’s Recess Appointments Unconstitutional? Probably Not

While the President's recess appointments are bound to set off a political dispute with the Republicans, there does not appear to be a Constitution ban against them.

Doug Mataconis · · 59 comments

As I noted earlier today, President Obama made a series of Recess Appointments today, first appointing Richard Cordray to head the Consumer Financial Protection Bureau during a speech in Ohio, and then making three recess appointments to the National Labor Relations Board. Leaving aside the policy objections to these appointments, which are largely irrelevant if the appointments themselves are Constitutionally proper, a question has arisen about whether or not the appointments themselves are Constitutional. Essentially, the question boils down to the question of whether or not Congress is, in fact, presently in “recess” as that term is used in Constitution. If it isn’t then an argument exists that the President did not have the authority to bypass the Senate’s advise and consent functions to get these people appointed. As it turns out, it’s a close issue and the argument that the appointments are improper is far more than just a partisan attack on the President.

Let’s start at the beginning, with the Constitution itself. Article II, Section 2, Clause 3 of the Constitution says:

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 a modification of the normal appointments power, which requires Presidential appointments to be approved by the Senate. As I’ve noted before, it’s a power that has been used many times in American history by Presidents of both parties, and it has been used to appoint everything from an Ambassador to the United Nations to Supreme Court Justices. So, if the power has been exercised properly then that’s the end of our inquiry. We’re presented, however, with other facts that bring into question whether the Senate is really in recess at the moment.

Article I, Section 5, Clause 4 says this about adjournments in Congress:

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.

Beginning when the Democrats took control of Congress after the 2006, the new Senate Majority Leader Harry Reid came up with a strategy designed to thwart President Bush’s ability to make recess appointments:

Senate Majority Leader Harry Reid has a little trick up his sleeve that could spell an end to President Bush‘s devilish recess appointments of controversial figures like former United Nations Ambassador John Bolton. We hear that over the long August vacation, when those types of summer hires are made, Reid will call the Senate into session just long enough to force the prez to send his nominees who need confirmation to the chamber. The talk is he will hold a quickie “pro forma” session every 10 days, tapping a local senator to run the hall. Senate workers and Republicans are miffed, but Reid is proving that he’s the new sheriff in town.

This practice quite obviously ended once Barack Obama became President. However, when the GOP took control of the House at the beginning of 2011, it came back into play in a very simple way. Even though the Republicans don’t control the Senate, the House is able to prevent both Houses from adjourning for more than three days by not consenting to it as the adjournment clause noted above requires. As was the practice during the final two years of the Bush Administration, this has resulted in the practice of what they call on Capitol Hill pro forma sessions of both Houses of Congress. If you happen to be watching C-Span on the right day, you’ll see the House (or Senate) called into session. The Clerk and all the civilian employees will be there, as will a single member of the body, or sometimes two, typically a member who represents a district in Maryland or Virginia or one who happens to be in Washington that day. The chamber will be gaveled into session, the Chaplin will say the prayer, they’ll recite the Pledge of Allegiance, and then the member who happens to present will move that the session be ended, the gavel will sound again and that will be it. It usually lasts no more than a few minutes, but under some interpretations of the law the body was “in session” that day.

The question is whether these pro forma sessions are sufficient to constitute being “in session” to obviate the President’s ability to make recess appointments. When the issue came up during the Bush Administration, but the determination was made that the White House could not, or at the very least should not, challenge the Congress on this issue. Back in 2010, though, Steven G. Bradbury and John P. Elwood, who worked in the Bush DoJ’s Office Of Legal Counsel, argued that the use of pro forma sessions to block Recess Appointments was improper:

Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not “in session for the appointment of officers.” In a 1905 report that the Senate still considers authoritative, the Senate Judiciary Committee recognized that a “Recess of the Senate” occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot “participate as a body in making appointments.” The committee cautioned that a “recess” means “something actual, not something fictitious.” The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.” The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president’s nominations. That means the Senate remains in “recess” for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions. The president should consider calling the Senate’s bluff by exercising his recess appointment power to challenge the use of pro forma sessions. If the Senate persists, then the federal courts may need to resolve the validity of the Senate’s gambit.

Elwood expands on this argument in a post today at The Volokh Conspiracy:

One of the most important documents on the scope of the Recess Appointments Clause is the report the Senate Judiciary Committee issued on the question in the wake of President Theodore Roosevelt’s decision to make recess appointments during a truly brief gap between two sessions of Congress. That report likewise advocated a practical interpretation that focused on the ability of the Senate to perform the advise and consent function. 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. S. Rep. No. 58-4389, at 2 (1905).

In other words, the pro forma sessions are a sham because the Senate isn’t really conducting any business during them, and there’s no intention that any business actually get conducted. In fact, the resolution that each chamber passes to cover the pro forma sessions states that no business shall be conducted during the session. This is meant in part to assure members that something won’t be done by “unanimous consent” behind their backs while they are out of town. Additionally, relying on the Adjournments Clause, one could argue that the lack of a consent from both Houses Of Congress means that there isn’t really a recess at all. The one problem with that argument is that the Constitution says nothing about how long a recess has to be for the appointment power to be effective:

How long a ”recess” must be to be actually a recess, a question here as in the pocket veto area, is uncertain. 3 O. L. C. 311, 314 (1979). A ”recess,” however, may be merely ”constructive,” as when a regular session succeeds immediately upon a special session. It was this kind of situation that gave rise to the once famous Crum incident. See 3 W. Willoughby, op. cit., n.294, 1508-1509.

On the other side of the argument, though, its worth noting that the Obama Administration has previously taken the position before the Supreme Court that a “recess” had to be longer than the three days permitted by Article I, Section 5, Clause 4:

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why? MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board. If there are no other questions – CHIEF JUSTICE ROBERTS: Thank you, counsel.

Additionally, when the Clinton Administration looked at this issue in 1993, its lawyers determined that the pro forma sessions procedure prevented the use of the Recess Appointment power:

The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over time, the Department of Justice has offered differing views on this question, and no settled understanding appears to exist. In 1993, however, a Department of Justice brief implied that the President may make a recess appointment during a recess of more than three days. In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. This Adjournments Clause provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ….” Arguing that the recess during which the appointment at issue in the case was made was of sufficient length, the brief stated: “If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate’s ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. … It might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant. …Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.”

It’s worth noting, of course, that the Recess Appointment clause is in many respects a relic of the era in which the Constitution was drafted and the amount of time it took to travel from one part of the country to where ever the Capitol was located would take days, if not longer depending on the time of year. From the beginning of the Republic and continuing up until the early part of the 20th Century, Congress would often be out of session for months at a time and the need to make appointments would often arise quite regularly. Arguably, the Recess Appointment clause was never intended to empower the President to put into office a nominee that the Senate had refused to confirm. However, the Constitution does not say that, nor does it define what a proper recess for the purpose of the Recess Appointment clause actually is, which means the phrase is rather open ended an open to interpretation. And that is where this entire legal analysis must come to an end, really.

This issue has not been dealt with by the Courts on many occassions. Most recently, it occurred in 2004 when President Bush used a Recess Appointment to name William J. Pryor to the 11th Circuit Court of Appeals. Lawsuits were filed challenging the appointment, but the challenge was ultimately unsuccessful:

During the presidency of George W. Bush, Democrats actively filibustered the confirmation of federal appeals court nominee William Pryor, largely because of the conservative reputation he gained while serving as the attorney general of Alabama. A Republican-led Senate coalition fell seven votes shy of invoking cloture to end this filibuster. Following this defeat, Bush circumvented the Senate by recess appointing Pryor, during a ten-day Senate recess in February 2004. Outraged Democrats, led by Senator Ted Kennedy (D-MA), filed an amicus curiae brief in support of a lawsuit that challenged the legality of Pryor’s appointment. Kennedy asserted that it was unconstitutional to make recess appointments during the short intrasession recesses that occur during a congressional session. Eight months later, the Eleventh Circuit Court of Appeals rejected Kennedy’s challenge, ruling that the Constitution “does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause”

The Supreme Court refused to take up the appeal of the case, and the decision still stands as good law. So, as a matter of law, it does not appear that the President acted unconstitutionally at all. Whether he’ll pay a political price for it is, of course, a different question. There will no doubt be legal challenges filed over these appointments, but it seems unlikely to me that whatever Court happens to hear them is going to go any further than the 11th Circuit did just 7 years ago. For one thing, there is no hard-and-fast definition of “recess” in the Constitution. For another, the Courts simply aren’t going to involve themselves in what is ultimately a political dispute between the two other branches of government.