An Odd Proposal for Recess Appointments

Michael Tomasky, writing in The Daily Beast has this proposal:

I’ve been wondering lately the same thing as a lot of liberals in Washington: when and how will the president ever grow some backbone? Sure, the post-debt-deal polls show that he came out of the mess looking somewhat less terrible than the Republicans. But he looks weak, and he’ll keep getting pushed around until he throws down on something. I’m planning an occasional series about what that something could be, and here’s idea No. 1: force the Congress into recess and make a slew of appointments.

What? Force the Congress into recess? Yes. The president has the power under the Constitution to do exactly that. Read Article II, which is, of course, on the executive branch, Section 3, titled “State of the Union, Convening Congress.” It states in full about the president that:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he 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; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

“[H]e may adjourn them to such Time as he shall think proper.” Of course, there are caveats. First, it must be an extraordinary occasion. Second, the two houses of Congress must disagree about the time of adjournment. Both can be finessed. On the first point, Obama can actually reasonably argue that the number of presidential appointments held up by Republicans (we’ll get to the numbers in a minute) is so large as to constitute an extraordinary circumstance. On the second, all that would take is for the Democratic-controlled Senate to force a “disagreement” with the House about when Congress should adjourn….

If Obama invoked his constitutional power for a change, conservatives would howl, but liberals would be enraptured, and independents would note that he finally took a stand…. An Obama who did that would light this town up, and he’d be making a stand that would serve not only him well but also future occupants of his office of both parties (which is how he could package it in keeping with his post-partisan daydreams)….

I’m not an expert on separation of powers, but this seems like an odd way of framing the problem.

1. To begin with, to make recess appointments, President Obama doesn’t have to “force the Congress into recess.” All he needs is for the Senate to be in recess. “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.” So all that’s necessary is for the Senate to go into recess; the House can still keep doing whatever it wants to do.

2. To be sure, another provision of the Constitution, which the article doesn’t cite, says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” So while the House doesn’t have to adjourn for the President to make recess appointments, it does have to consent to the Senate’s adjournment. And if the House doesn’t consent, then the President might adjourn both houses (something that apparently no President had ever done, at least as of 2000). But I know of no reason to think that the House wouldn’t consent to the Senate’s adjourning. [UPDATE: A commenter points out that the House has at times indeed blocked the Senate’s adjournment; but in any event, the necessary first step is for the Senate to seek house consent to adjourn.]

3. Indeed, another matter that the article doesn’t mention is that the Senate had apparently been adjourning in the middle of a session, thus allowing recess appointments, quite regularly — until recently. According to the Congressional Research Service, “From November 2007 through the end of the Bush presidency, the Senate structured its recesses in a way that was intended, at least initially, to prevent the President from making recess appointments by preventing the occurrence of a recess of more than three days.” It appears that the current “summer recess” of the Senate is in fact such a non-recess, with “pro forma sessions” every three days. If the President wants to make recess appointments, his first step is simply to get the Senate to go back on its Democrats-vs.-Bush-era practice.

4. I don’t know Senate rules enough to know whether such a change from a recess-filled-with-pro-forma-sessions to a true adjournment could be filibustered by the Republicans. But if it can be filibustered by Republicans, then Tomasky’s proposal is a nonstarter, because then there’d be no disagreement between the Houses — presumably neither would be adjourning.

So unless I’m missing something, all this talk of a literally unprecedented adjournment of both Houses is premised on the unstated hypothetical that the House will refuse to let the Senate adjourn — where right now it’s the Senate that is refusing to adjourn, based on a policy that apparently was created by Democrats who wanted to block President Bush from making recess appointments. Perhaps if the Democrats simply revise that policy, the House will let the Senate adjourn, and President Obama will be able to make his recess appointments. UPDATE: Or perhaps some negotiation between the Senate, the House, and the President could let the Senate adjourn with the House’s permission, and keep the House in session as long as it wants to stay in session. In any event, the President’s goal, if he wants to make recess appointments, wouldn’t be to have Congress adjourn; it would be to have the Senate adjourn, and have the House permit that adjournment.

NOTES: (1) I considered the possibility that the Adjournment Clause only applies to disagreements between the Houses about the time to which they were to adjourn, which is to say the time of return, and not to disagreements about whether to adjourn. But my quick review of early treatises and modern legal academic views on the matter suggests that the dominant view is that the President may indeed adjourn both houses if they disagree about whether to adjourn. (2) I also understand that there is a dispute about whether the Recess Appointments Clause actually applies to mid-session adjournments, but recent practice has taken the view that it does so apply.