It is being reported that President Obama intends to recess appoint Richard Cordray to be the first Director of the Consumer Financial Protection Bureau despite the fact that the Senate has been conducting pro forma sessions for the precise purpose of preventing him from making recess appointments. Under this procedure, the Senate “gavels in” briefly every three days, calls the house to order, and ordinarily gavels right back out without conducting any business. The procedure commonly takes less than 30 seconds. A couple of representative pro forma sessions can be viewed here and here. The procedure was first used for the purpose of trying to prevent the President from using his recess appointment authority late in President George W. Bush’s second term, and has been used heavily since.
In October 2010, my former boss at DOJ’s Office of Legal Counsel, Steve Bradbury, and I wrote this op-ed arguing that such pro forma sessions at which no business is conducted do not interrupt a recess of the Senate within the meaning of the Recess Appointments Clause, and thus do not interfere with the President’s recess appointment authority. I recognize that this is a novel and difficult question of constitutional law, with very few relevant judicial precedents, and there are arguments for both positions. Here is an outline of the basic argument why such pro forma sessions do not interrupt a recess of the Senate.
In addition to the power to make appointments with the advice and consent of the Senate, the President has an auxiliary power under the Recess Appointments Clause “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.” The few discussions during the ratification debates to broach the subject (during which people argued both for and against such a power) tended to focus on how, absent such a power, the Senate would have to be continually in session to advise the President on the appointment of officers. That was also how Joseph Story framed the issue in his Commentaries on the Constitution: either “the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have the opportunity to act on the subject.”
Both the Senate and the Executive Branch traditionally have given the Recess Appointments Clause a practical construction that focuses on the Senate’s ability to provide advice and consent. The earliest opinion of the Attorney General on the issue (which first took the position, which also has been controversial, that the President can make appointments not only to fill vacancies that arise during the recess, but also which happen to continue to exist during such a recess) focused on the Senate’s ability to provide advice and consent. Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. 631, 633 (1823) (“all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President”).
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).
The argument is that the sort of pro forma sessions that are now going on don’t give the Senate the opportunity to conduct any business. Indeed, the resolution that preceded this recess specifies that no business will be conducted at these sessions.
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.
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.”).
Congress has its share of legitimate ways to curb the President’s use of recess appointments. For starters, the Pay Act imposes limits on the ability to pay officers who have been recess appointed; the Senate may “punish” the President by moving even slower on nominations; Congress may even reduce or eliminate funding for particular programs or agencies. I suspect that some of that will happen in the wake of this recess appointment. These are the sort of ways that the branches have traditionally wrangled over the use of recess appointments.
A caveat: Although no business was supposed to be conducted at any of these pro forma sessions, I understand that on December 23, Harry Reid actually did some work at one of them—he asked unanimous consent that the House-passed payroll tax holiday extension be considered read three times and made arrangements for a Conference Committee. But I believe the remainder of the sessions have had no business conducted at them, supporting an argument that the recess was not interrupted during that time.
The decision to make Richard Cordray the first such appointment strikes me as a “high roller” move. Given the role of the CFPB, it seems likely that Cordray will necessarily take many actions that will give rise to justiciable challenges–i.e., actions that will give people the opportunity to challenge in court the legality of his appointment. Given the importance of historical practice in defining the relationship between the Executive Branch and the Senate in this area, it arguably would have been a safer move to make several recess appointments of officers who would be unlikely to take actions justiciable by private parties, to establish the precedent. But for law nerds like me, the Cordray appointment means there may actually be a court ruling on this interesting (and under-explored) subject.
I expect that OLC will be releasing an opinion explaining the legal rationale supporting the appointment soon. Watch this space for more.
UPDATE: Ordinarily, when Congress goes out for recess, the two houses pass a concurrent resolution. They have to do that because Article I, Section 5, Clause 4 says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .” I hear that the House of Representatives didn’t consent to a recess, and in poking around the Congressional Record, I haven’t located any concurrent resolution for this recess. If you have definitive information one way or the other, let me know by email.
The Imperial Obama Presidency | Daily Pundit says:
[...] The Volokh Conspiracy » Recess Appointment of Richard Cordray Despite Pro Forma Sessions [...]
January 4, 2012, 12:31 pmObama Tempts Fight Over Recess Appointments - NYTimes.com says:
[...] [...]
January 4, 2012, 4:35 pmObama Ignores Constitution and Appoints Banking choice - Page 2 - INGunOwners says:
[...] to prevent him from using his recess-appointment authority, Vinson & Elkins’s John Elwood writes over at The Volokh Conspiracy. They're NOT in sessions and the vast majority of the 100 losers [...]
January 4, 2012, 4:54 pmObama Tempts Fight Over Recess Appointments – NYTimes.com | News Strom says:
[...] presidents from making recess appointments. Mr. Elwood expanded on that analysis in a lengthy blog posting on [...]
January 5, 2012, 12:27 amObama Angers Congress With Cordray Appointment « Rearranging Prejudices says:
[...] executive and legislative branches are supposed to compete. But, just to dot the “i”s, John Elwood defends the action, but calls it a “high roller” act. Give me [...]
January 5, 2012, 1:32 amObama’s Recess Appointment: Why Cordray Keeps His Commission, and Survives (or Avoids) Constitutional Challenge « Submitted to a Candid World says:
[...] Conspiracy — the go-to blog for legal nerds (I offer this as a very high compliment) — ask whether President Obama’s act placing Richard Cordray at the head of the Consumer Financial [...]
January 5, 2012, 7:30 amThe Volokh Conspiracy A Recess Appointment for Cordray | News Strom says:
[...] UPDATE: I just noticed John Elwood beat me to it. As one would expect, his post is more informative and erudite than mine (and, importantly, [...]
January 5, 2012, 8:43 amStones Cry Out - If they keep silent… » Things Heard: e203v4 says:
[...] the recess appointment. Although perhaps the lesson here is that the only people in the room being honest are those who [...]
January 5, 2012, 9:01 amObama was Right to Appoint Cordray | The Blog on Obama: White House Dossier says:
[...] that Obama under the current interpretation of the law is correct, and the Senate is not.H/T to The Volokh Conspiracy, the conservative legal blog where I found some of the information for this [...]
January 5, 2012, 9:50 amEven Obama Agrees that the Senate Was Not in Recess says:
[...] that the Constitution is vague on when Congress is in session and that the President can therefore take a “functionalist” approach that considers whether the Senate is available to vote on [...]
January 5, 2012, 12:31 pmLegality of President Obama’s Cordray Appointment in a Nutshell | The Nevada View says:
[...] appointment. John Elwood does a much more thorough and eloquent job of explaining this argument here. About Justin McAffee:Justin is the publisher/Editor of The Nevada View and is also the New [...]
January 5, 2012, 4:48 pmRecess Appointments of Federal Judges | Just Enrichment says:
[...] in light of the Senate’s attempt to preclude them by holding pro forma sessions (e.g., John Elwood, John Yoo, Richard Epstein), as to which I have nothing to say. Instead, I’ll address a [...]
January 5, 2012, 10:59 pmObama’s recess appointments II | Questions and Observations says:
[...] John Elwood puts it at the libertarian/conservative legal blog "The Volokh Conspiracy": Concluding that such [...]
January 6, 2012, 1:12 amEven Obama Agrees that the Senate Was Not in Recess | PERSUASION IN INK says:
[...] that the Constitution is vague on when Congress is in session and that the President can therefore take a “functionalist” approach that considers whether the Senate is available to vote on [...]
January 6, 2012, 6:02 amObama to Make Cordray Recess Appointment - Page 5 - CycloneFanatic says:
[...] [...]
January 6, 2012, 11:30 amJim's Little Corner of the Universe says:
[...] (Volokh) [...]
January 7, 2012, 6:55 pmThe OLC Opinion on Obama’s Recess Appointments | emptywheel says:
[...] on the issue can be seen in this Washington Post Op-Ed from October of 2010 and this article at the Volokh Conspiracy last week when Obama used his theory and actually pulled the trigger on the recess appointments. [...]
January 12, 2012, 2:28 pmJustice Dept. Memo Defends Obama on Recess Appointments | Articles Blog says:
[...] Counsel, John Elwood, saying she was drawing on his analysis. After leaving government, Mr. Elwood wrote that presidents have the authority to take such a [...]
January 14, 2012, 2:50 pmJustice Dept. Defends Obama’s Recess Appointments | Articles Blog says:
[...] lawyer in the Office of Legal Counsel, John P. Elwood. Now in private practice, he recently argued that Mr. Obama’s step was [...]
January 17, 2012, 9:42 amThe recess appointments « Internet Scofflaw says:
[...] John Elwood makes the case that the appointments are valid, because otherwise the Congress would have the power to frustrate the President’s constitutional authority. But I find John Yoo and Richard Epstein’s analyses more convincing. Both of them point out that President Obama is arrogating the authority to decide for Congress whether Congress’s session is a real one. To the contrary, the Constitution always grants each branch of government the power to make such decisions itself. (Epstein goes further and challenges the entire power of recess appointments as it is now used, but I don’t think we need to reach that.) [...]
January 17, 2012, 5:47 pm