The recess appointnment claus is an “odd clause” — and perhaps even the “oddest clause of all” in the Constitution, according to BU’s Jay Wexler. However odd it may be, it’s receiving lots of attention due to the President’s decision to make four recess appointments even though the Senate maintains it had not formally recessed.
Michael Rappaport makes the originalist case against the President’s recess appointments here. Likewise, Richard Epstein and John Yoo both argue President Obama’s recess appointments are unconstitutional, as do David Rivkin and Lee Casey. (Note that some of these arguments would have applied to prior recess appointments, including those by President Bush.) At NRO’s Bench Memos, Matthew Franck is unconvinced. Recall our own John Elwood has also taken the opposite view. Yale law student Alexander Platt also has a timely student note on the legality of recess appointments,“Preserving the Appointments Safety Valve,” arguing against the use of pro forma sessions to prevent recess appointments from being made. (Hat tip: Lawrence Solum)
Legal scholars also debated the acceptatbility of recess appointments during the Bush Administration. Marty Lederman, for example, argued that the recess appointments clause can only be used a) during intersession recesses to fill b) vacancies that occurred during the recess. The first argument was used (unsucessfully) in an effort to unseat Judge William Pryor who received a recess appointment to the U.S. Court of Appeals for the 11th Circuit.
Whatever the merits of the respective legal arguments — and whether or not they are ever resolved in court — at the Monkey Cage, Sarah Binder observes that Presidents of both parties have made intrasession recess appointments for quite some time, and sees little reason for the practice to stop. But, as Ezra Klein notes, there are limits to how often this tactic will be used (more here).
While academic commentators seem to have maintained their prior positions, the same cannot be said of political leaders. As The Hill reports, Senate Majority Leader Harry Reid supports President Obama’s recess appointments even though he previously argued pro-forma sessions were sufficient to prevent such appointments from being made.
UPDATE: Here is some additional commentary from Bruce Ackerman, Lawrence Tribe, and Adam White.
ragebot says:
I am far from an expert on this but have seen lots of talking heads claim Obama’s actions in the most recent appointments were some how different than previous ones in their timing. While this may be some type of technically this does seem to be the first time I have seen the argument there are various types of recess appointments and what Obama did sorta broke a truce.
I can recall with previous recess appointments there was blow back over the appointment; but this is the first time I recall the claim that a different timing/procedure got bashed. Can anyone explain why Obama’s method as well as the actual appointment is the source of criticism.
January 6, 2012, 9:05 amrbj says:
Ragebot,
Is the Senate in recess, yes or no? I don’t want any qualifiers such as “effectively” or “essentially.” It seems to me that the Senate is in session, not in recess. Oh, and is it the President’s decision to decide whether the Senate is in recess or not?
January 6, 2012, 9:15 amcboldt says:
– It seems to me that the Senate is in session … –
January 6, 2012, 9:28 amAbsent a quorum, how can it be? The pro forma sessions are expressly stated to be “no business conducted.”
Steve says:
It’s hard to avoid the conclusion that the entire thing is a political question on both sides. When the President makes a recess appointment during a “legitimate” recess of three or five or ten days, it’s not as though there’s an emergency and gosh, that position just has to be filled immediately. The recess just serves as a convenient excuse to cut the Senate out of the process.
Whether the Senate deserves to be cut out is the essence of the political question. It’s typical of this age of escalating obstruction that there have been literally hundreds of uncontroversial nominees to uncontroversial positions over the last several years who can’t even get a vote. The Senate has become so dysfunctional that it will allow a single Senator to get revenge for being denied a piece of pork by delaying a completely unrelated nominee as pure blackmail.
If things continue like this, we may see President Santorum making recess appointments at midnight by claiming there was an “overnight recess.” It’s a shame we’ve come to this, but I guess Teddy Roosevelt made recess appointments during a one-day recess and the Republic didn’t end. This is the political process of one branch pushing and another branch pushing back, and it usually isn’t pretty.
January 6, 2012, 9:28 amAdam says:
“It’s hard to avoid the conclusion that the entire thing is a political question on both sides.”
At some level, the effectiveness of an executive appointment has to be a justiciable issue. If I file suit against a bank as “director” of the CPFB, surely the bank can successfully defend the action by claiming that I have no authority to do so since I’m not lawfully the director of the CPFB. Cordray of course will have the additional argument that the President says he’s the director, but that just goes to the merits of his legal position.
January 6, 2012, 9:36 amloki13 says:
“John Yoo [] argue President Obama’s recess appointments are unconstitutional”
This may forever set the bar for unintentional hilarity.
John Yoo? John Yoo! The same John Yoo who served in the prior administration and argued for the unitary executive? The same John Yoo who could be called on to make a legal argument that would support whatever the President needed to hear?
The same John Yoo who, until this date, said nothing about his administration’s same use of the recess clause? Even though he was previously in a position to counsel against it?
That’s chutzpah.
January 6, 2012, 9:40 amMark Field says:
Bruce Ackerman has an editorial in the LA Times on the subject.
January 6, 2012, 10:10 amsenor says:
One branch of govt cannot decide when a coequal branch is in session. If I were a financial institution and cordray instituted a regulation against me, I would refuse to recognize it, force them to prosecute and then argue the constitutionality of the appointment as part of the case.
January 6, 2012, 10:12 amJack G says:
And Lawrence Tribe had an op-ed in the NY Times on the subject too.
Unsurprisingly, Tribe supports the recess appointments. While Prof. Adler states that “academic commentators seem to have maintained their prior positions”, academic commentators who do not have previously published positions can, of course, be expected to hackishly support their party. (See also, Prof. Yoo’s position.)
January 6, 2012, 10:31 amChris Rhodes says:
I suspect that would work about as well as a Texan who claims through some convoluted process that they don’t technically have to pay federal income tax.
January 6, 2012, 10:35 amcirby says:
…if by “same use,” you mean “did not make an appointment when the Democrats were meeting every three days just to prevent such an appointment.” In that case, “same use” was “didn’t use.”
January 6, 2012, 10:37 amKatja says:
rbj, if you start reading the Recess Appointments Clause literally, then you will notice that there is also no minimum length for the duration of a recess. Harry Reid could technically recess the senate overnight (motions to take a recess are not subject to debate and thus cannot be filibustered) or even for five minutes for the sole purpose of allowing the president to make recess appointments. The Senate cannot recess or adjourn for more than three days without the approval of the House, but it can adjourn or recess for shorter periods without consent from the House. The various suggested minimum durations are creatures of custom.
In fact, Obama could have followed Theodore Roosevelt’s model. He didn’t, though, interestingly enough, when the opportunity presented itself. Obviously, he (and the OLC) seem to think the approach they actually took was the better one. It is almost certainly the one that’s healthier for our political system (legal issues aside), because it depends on the Senate actually delaying the nomination process rather than relying on procedural artifacts, and thus creates less of a risk that it will undermine the Senate’s power to advice and consent.
It is probably also worth noting that the Chief Justice of the Supreme Court seems to be sympathetic to the notion that the recess appointment power is a legitimate counter to dilatory tactics employed by the Senate.
My ideal solution, incidentally, would be to fix the whole mess by means of a constitutional amendment. Not that it’s going to happen, but it would be the cleanest solution.
January 6, 2012, 10:40 amChrisIowa says:
Recess appointments made sense when the Senate and house were part time and recesses lasted for months. Now, the problem isn’t that the Senate can delay action for months by being out of session, but that the Senate, or any Senator, can delay action for months by being in session.
The basic problem is that there needs to be a mechanism to force the Senate to act on the President’s nominations within a reasonable time.
This is another indication that the Senate needs to be reformed. This will not happen within the current structure of the Senate, so this issue is another argument for a Constitutional Convention to be called by the States.
January 6, 2012, 10:40 amfalse seriousness says:
Adler, you need to put this issue in the context of the refusal of Senate republicans to consider *any* person for the CFFP position, a position already created by law (and over a filibuster). This is a step beyond, which resulted in the blowback.
Use the word “nullification”. It’s an important word. By not providing this context, you are not being fair.
January 6, 2012, 10:41 amThe Paucity of Real Arguments Against Recess Appointments « Submitted to a Candid World says:
[...] a sign of the true weakness of the case against Obama’s recess appointments that (per Volokh) neither can frame a good argument on the subject. Epstein, for his part, argues that recess [...]
January 6, 2012, 10:55 amMDT says:
What cirby said, loki13. At least, as I recall it, the Bush Administration did not do what Obama is doing now; it treated the Senate’s pro forma sessions as meaning that the Senate was not, in fact, in recess. This is something new (or, if you want to point to TR, something more than a century old, but unused in the interim).
January 6, 2012, 11:03 amSteve Donweber says:
The bank can claim that as a defense, sure, but the bank will lose.
January 6, 2012, 11:12 amSteve Donweber says:
And you would lose. Big time.
January 6, 2012, 11:13 amUgh says:
Meh, it seems fairly clear under the Constitution that it’s wholly up to the Senate to determine when it’s in recess: “Each House may determine the rules of its proceedings.”
It’s a purely political play by Obama, in response to the purely political obstruction the GOP.
Also, why anyone pays any attention to anything John Yoo says on a constitutional subject is beyond me.
January 6, 2012, 11:15 amOrenWithAnE says:
And if you were an attorney this would be malpractice. Better to follow the regulation and ask a court for relief, since that CsYA in the even the courts don’t agree with you.
January 6, 2012, 11:16 amDave N. says:
The Senate could simply reform its rules and not allow filibusters on Executive Appointments. I have less heartburn over blue slips, even when a Democratic Senator is using one to block one of President Obama’s nominees to the 3rd Circuit.
I do note the political hackery by politicians on both sides. Those who opposed President Bush’s recess appointments see no problem with President Obama’s, and vice versa.
Ironically, this colloquy between the Supreme Court and Deputy Solicitor General Neal Katyal occurred in 2010, during oral argument for New Process Steel, L.P. v. National Labor Relations Board:
January 6, 2012, 11:23 amalkali says:
U.S. Const. art. 2, sec. 3: “in Case of Disagreement between them [i.e., the House and Senate], with Respect to the Time of Adjournment, he [the President] may adjourn them to such Time as he shall think proper”
This power hasn’t been invoked here, but it does go to your point.
January 6, 2012, 11:25 amHm. says:
Forgive me if this sounds naive. I’m not a constitutional scholar and only have an amateur interest in these stuff, though I do like to debate literally anything.
Isn’t there some kind of legal idea that something is Constitutional by tradition? It sounds pretty ridiculous like that, but I’m having a hard time describing it. I have heard the idea before, though.
Anyways, the arguments for these recess appointments being unconstitutional aren’t very convincing to me. (Then again, I don’t buy into originalism in the first place.) Recess appointments are supposed to ensure that the government can actually run when Congress is not in session. It seems odd that the clause would only apply if a vacancy arose during a recess.
What would happen if Congress passed a law creating an incredibly important agency that needed to be staffed quickly, but took a recess instead? Isn’t this exactly the kind of thing the recess appointment clause sounds like it was written for? The vacancy didn’t occur during a recess, but there is a vacancy nonetheless and it’s imperative that it be filled. The Senate is unable to confirm an appointee, because they’ve voluntarily gone on vacation. It’s not like the Senate is required to recess. Back during the early years of our country, it’s important to note Congress also didn’t employ a tactic specifically to block recess appointments.
Also, I’m glad nobody but the amateur commentariat is believing the notion that Cordray lacks full statutory authority, since the statue defines the director as a person who has been confirmed by the Senate. That was a really lazy argument that could be debunked in five minutes with a Cornell LLI search for appointment clauses.
January 6, 2012, 11:29 amJoe says:
The recess just serves as a convenient excuse to cut the Senate out of the process.
They aren’t really “cut out” though. The Senate continues to be involved in “the process” even if a temporary appointment is put in place a few times. The process is the whole thing, not some specific act.
I also, and I don’t think this is picky either, don’t think that an “excuse” is involved here. There is a good reason for this move that is based on the balance of things. If Corday, who Republicans don’t oppose on the merits, was treated in a half-way reasonable way, the move would be more problematic, if perhaps still constitutional. “Excuse” belittles the point.
As to Mark Field’s op-ed cite, I don’t find it convincing. This talk of “rubber stamp” and “imperial presidency” is particularly annoying. Give me a break. Obama has made noticeably less recess appointments even in the face of more obstructionism. Corday himself was a compromise pick. The other three recess appointments were a matter of allowing the board involved to operate.
The comparison to the Libya invasion is inapt too — seriously, get a bit of perspective. Let’s see, lethal foreign conflict that arguably does an end-around to the Congress’ war power … recess appointment of a few officers. The talk of a “legal mouthpiece” and equalizing Obama and the Senate (“the public” is right to be upset, as if both are equally wrong) also rubs the wrong way.
As to Tribe supporting it, a previous VC post that discussed this issue in detail cited an op-ed co-written by a conservative that rejected phony pro forma sessions to get around the recess appointment power. As with filibustering, this sort of thing is a bipartisan problem. Someone who used the recess appointment sparingly and used it here to appoint a person the Republicans didn’t oppose on the merits but as a move to attack a democratically passed piece of legislation they don’t like is a small but helpful means to attack the excesses.
January 6, 2012, 11:31 amDave N. says:
Your argument makes no sense on at least two levels. First, since, as you argued, the Senate gets to argue when it is in recess, then it can just recess since the Senate is controlled by Democrats and as previously noted, a motion to recess or adjourn is not subject to filibuster.
Second, while you may not like John Yoo or the advice he gave President Bush, he is a Professor of Law at the University of California, specializing in Constitutional Law, so evidently his credentials are a bit better than some anonymous commentator who chooses to call himself “Ugh.”
January 6, 2012, 11:32 amJoe says:
Hm. says:
Isn’t there some kind of legal idea that something is Constitutional by tradition?
Yes, certain things have been recognized as constitutional because of long practice. In 1803, the Supreme Court noted that justices have been “circuit riding” for awhile (then only about a decade) so it was a bit late to suddenly say it was unconstitutional.
Time doesn’t heal all wounds, but repeatedly, long practice is a strong presumption, if one that is rebuttable if the argument is strong enough.
Ugh says:
Meh, it seems fairly clear under the Constitution that it’s wholly up to the Senate to determine when it’s in recess: “Each House may determine the rules of its proceedings.”
It is limited by constitutional requirements including the basic meaning of words. So, if the Senate wanted to pretend it was in “recess” even though it was actually doing business, no sale. It also can’t make a “rule” to expel a member because the member is black.
January 6, 2012, 11:41 amHm. says:
Okay, I really don’t know what’s happening here. Ever since I got back to university, it seems like all of my comments are being screened. Is this because of an automatic spam filter? Or is anybody else experiencing this, as well?
Normally, my comments would show up immediately. Now I post them, sometimes they appear, sometimes they don’t. Sometimes they disappear after appearing. Is VC having trouble with WordPress?
January 6, 2012, 11:43 amloki13 says:
I will not opine on John Yoo’s intelligence, but his integrity is open to question. Not because of his infamous memo in isolation (although the lack of, inter alia, Youngstown Steel made it curious), but because he seems to curiously find new theories for executive power depending on who is in charge.
As for those opining about what Bush did or didn’t *do*, my comment reflects the fact that Bush’s *lawyers* (aka the people Mr. Yoo worked with) were advising Mr. Bush that it was perfectly proper to ignore the pro forma sessions, apparently as early as 2004. Which, again, I would have no problem with as it fits in with his overall philosophy, so long as it didn’t seem to change depending on the administration. If you want to go all-in on the unitary executive, at least have the cajones to realize that the executive might be of a different party someday.
January 6, 2012, 11:45 amMartinned says:
Certainly. I would argue that the idea that recess appointments can also be used for vacancies that already existed at the start of the recess – which is based on nothing other than an 1825 A-G opinion – is one of those rules, for example.
January 6, 2012, 11:48 amloki13 says:
Which gets me to the bigger problem I have with people like Mr. Yoo. I expect hypocrisy from those like Cornyn and Reid, who are now against the very thing they were once for- after all, they are politicians.
But when you are writing what is *supposed* to be honest, good-faith legal advice, you should not be surprised when the next administration uses your legal advice to, well, do what you advised.
January 6, 2012, 11:49 amMark Field says:
Your first point is right. On your second, Yoo has so discredited himself that I’d actually take an anonymous internet commenter over him.
Oh, and the page loads are acting up again.
January 6, 2012, 12:07 pmJack G says:
BTW, I haven’t seen any discussion that, apparently, the White House completely bypassed OLC, and simply based their action of White House Counsel’s opinion. (That was implied by the White House’s spokeman yesterday.) Does anybody know if there has been discussion of this?
January 6, 2012, 12:14 pmBob from Ohio says:
The logical response for the GOP in the Senate is to filibuster all Obama appointments for as long as he is president.
(Might have to make exceptions for high profile posts like S/C, Secretary of State, AG)
While tolerable for the next year, if he wins re-election, gradually this will dry up the pool of applicants willing to take office for a year or two under recess appointments.
The logicaly response if the Senate remains Dem is to kill the filibuster.
Obama may have done a good deed regardless of the merits of his power.
January 6, 2012, 12:15 pmJoe says:
I see the comments loading issue is still ongoing.
January 6, 2012, 12:16 pmArthur Kirkland says:
Unless one believes that the University of California would have hired John Yoo after the quality of his legal work and the content of his character were revealed in the torture episode, that credential no longer means much, if anything. The government repudiated Yoo’s performance as a lawyer; tenure and academic gentility appear to cause his current employer to grin and bear it so long as Yoo lacks the integrity that would incline an honorable person to resign.
Would John Yoo be admitted to the bar in most jurisdictions if applying currently?
January 6, 2012, 12:22 pmdirc says:
I thought lawyers were paid to provide legal advice that serves their clients’ interest. It has not been my impression that “honesty” and “good-faith” are required. And remember the Volokh Rule that partisans were required to change their positions on questions of power on January 20, 2009, now that the President is from a different party.
Anyway, this illustrates that the Constitution is a dead letter. Parties pay lip-service to its adherence, but none of the three branches of government take it very seriously. They take the position of that great philosopher, Humpty Dumpty, “When I use a word, it means just what I choose it to mean — neither more nor less.”
January 6, 2012, 12:29 pmfwb says:
1 + 1 = 3
Most folks would argue that this is incorrect. Why? Because of the convention used to define 1 + 1 as = 2. But anyone can redefine the meaning as they wish. However, the meaning becomes useless to other when this is done. The point of having a standard is to provide a common means of communication among people.
Language has grammarical conventions and the clause being discussed has one and only one meaning when proper, standard English grammarical conventions are applied to it. As written, the phrase “…that may happen during the Recess…” is a dependent clause and the modifies when the “vacancies” occur in the independent clause of the same paragraph. It is absolute. Note the word “which” was not used to begin this dependent clause. People who are old enough were made to diagram sentences such as this when learning proper grammar in school.
Slavery was practiced and perfectly acceptable for thousands of years. It was still wrong. It matters not how long ignorant people have incorrectly understood and acted on this grant of power. It is still wrong to continue violating the supreme law.
January 6, 2012, 12:31 pmloki13 says:
Arthur,
This doesn’t get at exactly the point I was making. The law can be unclear. And there is a difference between normative and descriptive. Which is why I have two problems with Mr. Yoo.
The first is that (IMO) he conflated normative and descriptive claims about the law when giving advice. It’s fine to give normative advice (this is what the law should be) to clients, so long as you accurately appraise them with a descriptive appraisal of what the law is. You need to do that even if you’re just counterpointing it to what you think the client should do because of your normative description. For someone as learned as Mr. Yoo is, I don’t think he did a very good job of that.
The second is consistency. Take the example of federalism. If you’re for federalism, then you should be for it, even when states pass laws you don’t like. Otherwise you’re rightly called a “fair-weather federalist” (as a lot of politicans are). You need to think through the consequences of your legal philosophy. While I disagree with Mr. Yoo’s positions on a most profound level, I would at least have an iota of respect for him if he had stayed more consistent to them despite the changing of administrations. Instead, while occasionally supporting his old theories, he has managed to backtrack on most of his unbridled executive claims and used every opportunity to try and attack the current executive. Which is fine for politicians, but if you make your bread and butter with this, then you need to stay consistent.
Imagine if Prof. Barnett, if a GOP president and legislature is elected in 2012, suddenly realizes that… hey, the commerce clause allows the national government to pass anything they want to.
January 6, 2012, 12:33 pmloki13 says:
1. Where did John Yoo work? (Answer- the DOJ’s OLC).
2. Who is the OLC’s client? (Answer- not the President, personally and only)
3. What does the OLC have to say about this?
“When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately
promotes the President’s constitutional obligation to ensure the legality of executive action.”
4. Why do you think that lawyers, while zealously defending their client’s interests, are not honest, and do not act in good-faith?
5. Why do you think that attorneys should not provide their clients with an honest appraisal of the law?
January 6, 2012, 12:40 pmburrow owl says:
Yoo certainly went all-in on CIC powers, and I don’t recall reading anything he’s written that proffers expansionist executive theory outside the foreign policy realm. At least on its face, the distinction he makes between foreign and domestic policy in defense of his position re: recess appointment is plausible.
January 6, 2012, 12:43 pmloki13 says:
FYI, this is yet another classic originalism mistake. A very good law review article was written about the use of punctuation during the founding, and it wasn’t used in the same way (dependent clauses etc.) that we do nowadays. It was “speaking punctuation” and attempts by courts to read back grammatical clauses of the type we use nowadays when interpreting contracts are misguided.
Of course, all of this goes to the usual- we see in it what we want to see, and then claim that, *wow* it supports the position that we already had, and the other side is just dumb and violating the Constitution.
January 6, 2012, 12:45 pmloki13 says:
Well, domestic wiretapping of US citizens absent a warrant might qualify as domestic (opinion pursuant both to CiC and unitary executive). It’s hard to say where his unitary executive ends and his CiC begins.
January 6, 2012, 12:54 pmAnon2 says:
That’s all ad hominem.
January 6, 2012, 1:07 pmStephen Lathrop says:
How about this: The Senate won’t confirm the head of a federal agency, maybe because they want to cripple the agency. So the President appoints himself the head, and selects a deputy to take care of day-to-day.
It’s not today’s issue, but is that any worse than pro-forma Senate sessions? How far do you want to go with using absurd distortions to avoid doing what’s right? Let them do it, and they will arrange to break everything—reach around behind the box of government and just pull out all the wires.
January 6, 2012, 1:34 pmUgh says:
I can’t respond to every comment, but let me say a couple things.
On whether the Senate is in “recess” or not, my only point was that under the Constitution it seems to me that it’s wholly up to the Senate, and since (it appears) that the Senate believes it is NOT in recess, then Obama’s so-called recess appointments are illegitimate/void (and from a political perspective, this means I’m siding with the GOP). I also don’t think it would be too much trouble for a court to rule in favor of Congress rather than chickening out and deciding it’s a “political question.”
On John Yoo, yes I’m not a tenured professor at Boalt. I did, however, earn a degree from the institution, in the course of which I took two classes from Professor Yoo, including the (then) basic introductory constitutional law class taught to 1Ls. Based on that experience, and Professor Yoo’s subsequent activities in the Bush Administration and beyond, I’m quite comfortable with the statement I made above regarding his pronouncements on constitutional matters.
January 6, 2012, 1:55 pmDave N. says:
While Richard Cordray’s recess appointment is getting the most attention, the three NLRB appointees are, in some ways, more curious.
As a Wall Street Journal blog noted today, the two Democrats who received recess appointments had been nominated just last month (with no time to hold confirmation hearings) and there was no apparent opposition to the Republican who was also named, though his nomination had languished for a year.
January 6, 2012, 1:56 pmguy in the veal calf office says:
It is beyond you that Prof. Yoo’s students want to pass his class and therefore listen to him?
January 6, 2012, 1:59 pmloki13 says:
I think they are all curious.
Look, I think that everyone demanding “right” answers to these questions are SOL. I think the best that can be done is to point out the hypocrisy on the part of multiple actors, from negligible hypocrisy (politicians are what they are) to more serious hypocrisy (hired gun “law experts”).
But in the end, this boils down to constitutional hardball. I don’t think that anyone disagrees that the original purpose of recess clause was, well, because travel and the legislature were different back then. OTOH, I also don’t think anyone seriously argues that the purpose of the advice and consent clause was to give a minority party the ability to stop all presidential appointments in the Senate. Just like the framers probably didn’t imagine spate over whether random “pro forma” meetings constituted a real recess or not.
This is short of a nuclear option for Obama (calling an adjournment after getting Reid to disagree with the House GOP). In short, the GOP pushed their constitutional advantage to the max, and now the executive is pushing back. A quintisentially political issue that isn’t solved by the text of the Constitution.
A better question is whether we really want the continued escalation of constitutional hardball that we have seen over the last decade or so. I would say no. Others might disagree.
January 6, 2012, 2:28 pmSarcastro says:
Silly guy, law students aren’t people.
January 6, 2012, 2:32 pmChrisIowa says:
Pigs could fly if they had wings. A large part of the problem includes that the Senate voted their rules changed so that a filibuster costs the Senator nothing. He no longer needs to actually be on the floor to prevent action. The physical effort required limited it’s use. But the rules were changed to make a filibuster effortless and it’s use expanded. The rules could be changed by the Senate, but they won’t. The current procedure of delaying appointments in committee also could be changed by the Senate, but they won’t.
No rule change will be made by the Senate that diminishes the power of a Senator. Its time for the States themselves to intervene. The only mechanism available for the States to intervene is the Constitutional Convention.
January 6, 2012, 2:38 pmJohn says:
I would love to hear Professor Tribe explain how his position squares–if it squares–with the amicus brief he and others submitted on behalf of Senator Kennedy in the Eleventh Circuit case challenging Judge Pryor’s recess appointment.
January 6, 2012, 2:38 pmChrisIowa says:
Are lawyers?
January 6, 2012, 2:40 pmragebot says:
It seems unclear to me just what a pro froma session is. Reading several recent VC threads I got the impression nothing of substance happened in a pro forma session. But talking heads at FOX are claiming the two month tax cut extension was passed in a pro forma session.
If this is the case does it mean the tax cuts are null and void since the Senate was not really in session?
January 6, 2012, 2:41 pmHm. says:
Normally, a pro forma sessions goes like this… The chair asks the clerk to read a letter by the president pro tempore appoint him as chair. He then proceeds to adjourn the Senate until the whenever they have to do another pro forma session to prevent recess appointments.
You can watch one on CSPAN. It takes literally a minute. http://www.c-spanvideo.org/program/303310-1
But, yeah, they did pass the payroll tax extension in a pro forma session. But that’s a once-in-a-lifetime event.
January 6, 2012, 3:04 pmCaesar Augustus says:
In true Orwellian fashion, he can simply deny that any such contrary position ever existed or that he ever espoused it. That is effectively what senators of both parties have done over the last 20 years or more with respect to blocking federal circuit nominees. When their own guy is doing the appointing, the nominees are entitled to a speedy up-or-down vote. When the other guy’s the one nominating, each nominee must be scrupulously examined because the nominee is quite likely “unqualified” because he’s an “extremist.” In their view, however, “extremist” means simply that the nominee’s judicial philosophy aligns with that of the nominating president. Caitlin Halligan and Goodwin Liu are not “unqualified,” but neither were Miguel Estrada or Peter Keisler, or, for that matter, Elena Kagan for the D.C. Circuit or John Roberts for the D.C. Circuit (in 1992 when he was first nominated).
January 6, 2012, 3:27 pmJon Shields says:
The Senate was unambiguously in recess on Wednesday. (See CSPAN on Tuesday: they are in recess until Friday.) The only question is whether the recess allowed a recess appointment to be made. Republicans are arguing that the recess was technically only three days (due to the pro forma sessions surrounding it), so by tradition, it is too short a recess for it to be used to make recess appointments.
The counterargument is that the Senate has been without an article 1 quorum and under an order to conduct no business for far longer than three days, so the unambiguous recess in question does qualify for recess appointments to be made.
But the Senate is not in any way claiming it was not in recess on Wednesday.
January 6, 2012, 3:42 pmrarango says:
At the risk of cynicism, it appears the legal community’s legal arguments hinge more on the initial behind the President’s name who made the appointments–As noted above, a political question that the party out of power might take note of when they are in the minority. I am shocked, shocked, I tell you to find legal justifications based on one’s politics and not the majesty of the consitution.
January 6, 2012, 3:47 pmSteve Donweber says:
Well, in this case, it’s not wholly up to the Senate, but that’s beside the point. Also, beside the point is whether the Senate is under its own rules and traditions in a formal “recess.” The point is that this is a sham. A sham designed to thwart the recess appointments power and still permit Senators to be home for the holidays and also to do whatever it is they do when they’re not in Washington obstructing. It was a sham when Reid and the Democrats did it in 2007 and it’s a sham now.
January 6, 2012, 3:49 pmrarango says:
oops–the party currently in power…
January 6, 2012, 3:50 pmrarango says:
oops: “the party currently in power might take note of when they are in the minority.”
January 6, 2012, 3:54 pmjosh says:
Let me play devil’s advocate just for fun here. While the lack of Youngstown Steel in the Yoo memo makes his conclusions there questionable, there is a difference between the Exec’s power during “war” and with regard to appointments.
That’s what Yoo would say anyway, I expect.
January 6, 2012, 3:55 pmloki13 says:
Personally, I think Obama was acceptable in doing this; I think that what he did was (as I wrote above) constitutional hardball, and was in response to constitutional hardball.
And I also think it will be acceptable if the next President (yes, even a -R) does it, if the Senate continues these games.
The hopeful endgame of all this is that there is some climbing down, and that the Senate actually takes their duties seriously to vote on the candidates, thereby avoiding this whole mess.
Now, that doesn’t mean that the Senate doesn’t play political games with the occasional nominee. Because, you know, politics. But this whole thing has become a farce. And if you want to *blame* the Democrats for starting the practice, or the Republicans for perfecting it, be my guest.
January 6, 2012, 3:56 pmJoe says:
On whether the Senate is in “recess” or not, my only point was that under the Constitution it seems to me that it’s wholly up to the Senate
And, as noted, it is not, in part since the word has some sort of meaning, and it can’t just define it any way it wants.
January 6, 2012, 4:10 pmdirc says:
1. Agreed. John Yoo used to work for OLC.
2. Who is OLC’s client? The executive branch. (From their website: “provides authoritative legal advice to the President and all the Executive Branch agencies”.)
3. Clearly you think that Mr. Yoo was deficient in this area, and you think that the current OLC lawyers are superior in providing “accurate and honest appraisals” of the law. But doesn’t that just reflect your own policy preferences?
4. I have seen little evidence that lawyers are held accountable for acting dishonestly and in bad-faith, except in the most extreme cases. Please remind me of the legal sanctions imposed on Mr. Yoo. If he is the very model for violation of OLC standards, why wasn’t he punished? I believe it is because the standard for honesty and good-faith behavior is so extremely low.
5. I think lawyers should provide their clients with an honest appraisal of how the law will be applied to them. That’s acting in the client’s best interest. I don’t think lawyers are required to provide advice on how they think the law should be interpreted.
In the present instance, the President appears to have been advised that he can decide when Congress is in recess, regardless of what Congress says, and therefore act to make recess appointments. You believe that this is an accurate and good-faith representation of the law, and are even willing to allow the same interpretation for a Republican president. I applaud your consistency.
Forgive me for believing that this is a self-serving interpretation of the law, provided with as much reference to what the law means as the memos written by the notorious Mr. Yoo. I think the President has been honestly and in good-faith advised that he can make these appointments and suffer no consequences under the law.
January 6, 2012, 4:27 pmRich Rostrom says:
Speaking of hardball measures: what prevents the Senate from ending its next session after one day, and starting a new session the next day? That would terminate all recess appointments.
Of course that would be a valid recess and the President could re-issue all the appointments.
The inconvenience to the Senate is, I guess, that all pending bills become void and must be reintroduced. Couldn’t the Senate tweak its rules to provide for carryover from one session to the next?
And why did TR indulge in that orgy of recess appointments? The Republican Senate majority was 57-37 at the time.
January 6, 2012, 4:30 pmAdam says:
“If I file suit against a bank as “director” of the CPFB, surely the bank can successfully defend the action by claiming that I have no authority to do so since I’m not lawfully the director of the CPFB.
The bank can claim that as a defense, sure, but the bank will lose.”
Really? Then I’m gonna start writing some regulations and suing people to enforce them. That should be fun.
January 6, 2012, 4:44 pmB-Rob says:
Fine. So he will simply (a) offer no more nominees, and (b) recess appoint EVERYONE he would otherwise have nominated to the Senate. So following your approach, we go from having a broken system of advice and consent to have no advice and consent whatsoever. How is that preferable?
January 6, 2012, 4:44 pmB-Rob says:
The GOPers lose their argument at the phrase “by tradition.” The Senate was obviously not in session on Wednesday. The Senate has performed no work since the pre-Christmas payroll tax capitulation, and planned to do no more work for another three weeks. There is nothing in the Constitution that says a recess has to be at least three days in a row in order for the president to make a recess appointment. That is used as a convenient rule of thumb because any recess of more than three days in a row needs the House’s agreement . . . which they would not give solely because they want to thwart recess appointments.
The “pro forma” sessions (another phrase absent from the Constitution) are shams, because it was agreed and intended that, for six weeks, the Senate simply would not do any business. There is no quorum to take a vote on anything, no business is scheduled, and no one is even in DC to vote if the president sent something over requiring attention. You cannot say the Senate was “in session” when there is no one present, no one scheduled to be present, and the lights are not even on.
And that is the fundamental problem with the objections to the recess appointments to the NLRB. Had the Senate acted on the GOPer nominee in the year since his name came up, there would have been a quorum after Craig Becker’s term expired, and there would be no problem. But the NLRB lacked a quorum as soon as Becker’s term ended. So how long would the GOPers have had the NLRB lacking a quorum? One year? Eight months? Forever? This was an unprecedented and unacceptable situation that was of the GOPs own making.
There is, of course, a simply solution to this problem — no filibusters and no blue slips on presidential appointees. Neither practice is noted in the Constitution, and it is both extra-constitutional rules that are causing the problem of unfilled positions in the administration and the courts. When a minority of senators is no longer permitted to hold appointments hostage for reasons unrelated to the nominees’ qualifications, the president will no longer feel the need to use recess appointments.
January 6, 2012, 5:06 pmMJW says:
That issue was discussed by Seth B. Tillman and Brian C. Kalt.
January 6, 2012, 5:26 pmragebot says:
The software analogy would be to ask “is this a bug or a feature”.
January 6, 2012, 5:40 pmcareless says:
“4. Why do you think that lawyers, while zealously defending their client’s interests, are not honest, and do not act in good-faith?”
You know, if you didn’t ask this in a room full of lawyers, people would think you were trying to be funny.
People lie, and many lawyers are in a position where they can lie for money. It’s. A recipe for a profession people don’t trust.
January 6, 2012, 6:11 pmwordsmith says:
The Senate also passed the FAA funding reauthorization last August while in pro forma session. That’s twice in the last six months…
January 6, 2012, 6:15 pmArthur Kirkland says:
Another voice expressing outrage is that of Todd Gaziano, one of the active participants in stacking the Commission on Civil Rights by having disingenuous right-wingers masquerade as something other than Republicans to evade an anti-stacking statute.
If conservatives can’t make the case against these appointments without leaving compromised advocates such as John Yoo and Todd Gaziano on the bench, it must be a very weak bench.
January 6, 2012, 6:32 pmArthur Kirkland says:
Are you forgetting that a Republican administration repudiated Prof. Yoo’s legal work? Are you asserting that (1) you believe Prof. Yoo’s work with respect to facilitating torture constituted strong, or even adequate, legal work, or that (2) it is not reasonable to conclude that Prof. Yoo’s conduct warranted disciplinary action?
January 6, 2012, 6:39 pmHm. says:
2010-present is extra-ordinary, so forgive my qualifier. :)
January 6, 2012, 7:01 pmJon Shields says:
That doesn’t matter. Both passed by unanimous consent, because it was accepted (by unanimous consent) that the Constitutionally-required quorum of a majority was present.
This does not change the fact that after December 23rd, no Constitutionally-required quorum was present. The fact that during some pro-forma sessions, some legislation has passed, does not mean that the Senate has the Constitutionally-required quorum to conduct business in such pro-forma sessions where legislation does not pass.
For one to argue otherwise, they would have to argue that the ability of the Senate to agree to a unanimous consent request to declare a quorum is relevant. But this can’t be right — otherwise, the ability of Congress to return on horseback in 1800 at any point during a 9-month recess would similarly be relevant. What matters is whether the Senate can Constitutionally conduct business during a given time period — not whether something could hypothetically happen (but did not happen) that could allow the Senate to Constitutionally conduct business.
January 6, 2012, 7:20 pmdirc says:
I’m not asserting (1) or (2). I don’t have a position on whether Prof. Yoo’s work with respect to torture constituted strong, or even adequate, legal work.
As my next point said, “If he is the very model for violation of OLC standards, why wasn’t he punished?”, then one could infer that according to the Obama administration OLC, Prof. Yoo’s work was adequate legal work. (Filled with errors on major points, they noted, but not apparently dishonest or bad-faith enough to warrant sanctions.)
With respect to disciplinary action, I accept what I think is your view, that his conduct warranted discipline, and the very lack of disciplinary action shows that lawyers need not act honestly or in good-faith to avoid sanctions.
I am arguing that lawyers are held to very low standards of honesty and good-faith, and I am basing that argument on the lack of punishment for Prof. Yoo. As you say, Republican and Democratic administrations have both repudiated his work. If his work is not considered an example of dishonest and bad-faith legal advice, then whose is?
I am also asserting that most people think that legal advice in the political realm is adequate or deficient based on their policy preferences. I don’t have a Gallup-type survey or social experiment to support that statement, so I don’t expect to convince anyone else on that point. The Volokh Rule for 2009 is an expression of a similar sentiment.
January 6, 2012, 7:24 pmDan says:
I am still puzzled as to whether Reid is with Obama on this or not. (Bruce Ackerman seems to think he’s not.) Or perhaps I don’t understand what’s really critical here: the Senate not adjourning, or the Senate holding pro forma sessions.
Why can’t Reid and Inouye just decline to authorize a senator to chair the pro forma session? Who is forcing them to have pro forma sessions? I don’t see how a Republican senator could gavel a session in with no authorization from leadership.
As was pointed out above (and by John Oliver on the Daily Show, natch), the adjournments clause allows the House to refuse to consent to the Senate adjourning. But if that’s all it takes to keep the Senate from recessing, what purpose does the pro forma session serve? What would happen if the House blocked the Senate from adjourning, but no pro forma sessions occurred?
Anyone?
January 6, 2012, 7:46 pmJimzinsocal says:
Sort of difficult for Republicans to say they were “technically” in session and respond to Obama around the debt ceiling increase…”can we do this after vacation” Certainly Obama can make the case…well I sure thought they were in recess…they wanted to wait…I assumed they were in recess.
January 6, 2012, 7:57 pmI could argue that a smart republican may have taken the 1.2 B request as a fishing expedition and perhaps thought about recess appointments and adjusted schedules.
Mark Field says:
Deleted comment.
January 6, 2012, 9:01 pmAdvice and Consent Has Been Written Out of the Constitution : Conservative Compendium says:
[...] appointments are certainly nothing new, even if Obama’s much talked about not-really-in-a-recess style recess appointment of Cordray to head up the Consumer Financial [...]
January 6, 2012, 9:21 pmragebot says:
You may have provided the answer and then asked the question. Reid has been on the other side of wanting a pro forma session when he was in the minority; and he knows the dems (and possibly Reid as well) will be in the minority sometime again. In addition the Senate does not want to depend on an unknown House to prevent a Senate recess. Sorta like you scratch my back and I’ll scratch yours.
On the other hand Obama has a short term interest in making the recess appointments and probably figures he will only have to deal with the blow back if/after he is re-elected.
January 6, 2012, 10:35 pmJanuary 6 roundup says:
[...] nominees. Legal? [Roger Pilon via National Right To Work, Richard Epstein, Mark Calabria, Adler link roundup]. What the New York Times thought back then about recess appointments; what it thinks [...]
January 7, 2012, 8:42 amDYSPEPSIA GENERATION » Blog Archive » Recess Appointment Roundup says:
[...] Volokh Conspiracy has assembled a number of useful links to knowledgeable legal discussion of the issue. [...]
January 7, 2012, 1:18 pmB-Rob says:
This is not true. In 2007, the Dems had the majority in the House and the Senate when they held pro forma sessions. Besides . . . it begs the question: not whether Bush did make recess appointments, but whether he could have. Given the absence of any mention of “pro forma sessions” in the Constitution, and given that there is an actual recess between each pro forma session, I think Bush could have made recess appointments if they chose to.
January 8, 2012, 12:00 pmJ. Aldridge says:
The best (and brief) constitutional analysis of the recess clause I have found is here. I think many need to re-read the clause again to understand it.
January 8, 2012, 5:40 pmB-Rob says:
I just posted a response. All this turns on the interpretation of the phrase “may happen”. “May happen” could mean “occur” or it could mean “be present.”
I think there is one fatal flaw in his interpretation, i.e., that only positions opening up DURING the recess can be filled with a recess appointment. That being, at no point during the last 100 years (and I would be willing to bet during the years before that, too) has the recess appointment clause been so interpreted as “occur,” and not “be present.” Remember — Teddy Roosevelt made 160 recess appointments during a 10 second gap between sessions. Obviously no one in that GOPer administration more than 100 years ago thought he was limited to filling positions that only opened during that 10 second window. As such, this is a self-styled conservative “Federalist” asking to apply a novel interpretation of a clause that has been interpreted in the opposite fashion for more than 100 years.
Conservativism is dead, long live conservativism . . . .
January 8, 2012, 7:23 pmJ. Aldridge says:
I think it means what it naturally means … if it occurs at all it must be while the Senate is in recess.
January 9, 2012, 2:48 amMark Buehner says:
Anybody else find it ironic that when it comes to the question of whether there is any constitutional limit on the governments commerce powers, the answer from Obama supporters is- yes, elections.
But when the question is what is the remedy for the presidents crucial ability to appoint a member to the national labor relations board in the face of Senate opposition… well we can’t have that, there is a constitutional principle at work.
Aren’t elections also the solution to this impasse? Apparently not.
January 9, 2012, 8:32 amDilan Esper says:
The election that matters here is the one Obama won. What did the Senate Republicans ever win? They are a minority.
These are executive branch appointments. If a group of Senators whose party LOST the Senatorial elections writ large tries to block Obama, this is a reasonble way to proceed.
January 9, 2012, 1:40 pmBrian Mannix says:
It seems to me that the Cordray appointment makes something of a perfect storm of colliding constitutional infirmities.
The questions about the legitimacy of the recess appointment are layered on top of some others, and not just the perennial Humphrey’s Executor question of whether Cordray can be fired as easily as he was hired.
First among these is the nondelegation doctrine. I doubt that anyone has the stomach for another run at this after American Trucking, but Cordray’s charge at the CFPB to proscribe “abusive practices” by lenders is no more clear than NIRA’s famous charge to develop codes of “fair competition.” (see Schechter Poultry.)
Moreover, part of what made the National Industrial Recovery Act so offensive was that it vaguely delegated legislative authority to industry associations – private parties whose interests in defining fair competition could in no way be construed as paralleling the public interest. Here we have something similar: the CFPB is part of the Federal Reserve System, which is a privately owned association of banks. (Lewis v. United States, 680 F. 2d 1239 – Court of Appeals, 9th Circuit 1982) OK, I wouldn’t ordinarily cite the 9th Circuit as authoritative, but it’s all I got on this point.
Yes, the Fed regulates banks, but I believe it regulates only those that are (voluntary) members, which, last time I checked, was a numerical minority of U.S. banks. (I believe it also has a sort of in rem authority to regulate money more broadly.) Through the CFPB, this private association of banks will get to decide whether the practices of their more annoying competitors – e.g., payday loan shops, who are NOT members of the Fed – are abusive and therefore unlawful.
Yes, despite being privately owned and largely free of both Legislative and Executive oversight, the Fed is the recipient of other important powers delegated by Congress: specifically, the power to (metaphorically) print money. It seems to me that we (and the courts) tolerate this extraordinary independence (which goes far beyond that of a typical “independent agency”) because there is a widespread – not universal, but widespread – consensus that the management of the money supply ought to be insulated from the factional turbulence of the political branches.
Not only do the arguments for Fed independence NOT apply to the functions of the Bureau, they militate against combining the two. Putting the CFPB in the Fed compromises the Fed’s independence by mixing politically charged policy questions in with its ministerial monetary functions. Not that its monetary functions aren’t politically charged, but I believe they are different in character. Moreover, if the Fed is an unsuitable vessel into which to pour the CFPB’s charge, I don’t see that providing the CFPB with independence within the Fed – as Dodd-Frank attempts to do – represents any kind of a cure. It simply adds another weak link in a chain of accountability that is already too weak.
Consider too the mechanism by which the Fed is funded: it receives no appropriations from Congress, but finances itself from operating “profits.” When you are in the business of managing the money supply, profits are whatever you say they are. The Fed holds a huge portfolio of Treasury notes, and it defines the interest rate on those notes to be whatever rate will cause the excess profits to be paid the Treasury, after the Fed’s own fiscal requirements have been deducted.
So, if we can put a regulatory agency into this magic money machine, why stop there? Wouldn’t it be easy (stupid, but easy) to “solve” the insolvency of the Social Security System by putting into the Fed? And if that works, why not health care?
The independence of the Fed is not simply to prevent political interference with its monetary decisions. It prevents all manner of abuses that become possible when its narrow ministerial function is combined with other governmental powers like spending and regulation. One such abuse is the ability to evade the Congress’s constitutional authority to appropriate money.
I hope that any challenge to the CFPB’s authority tackles this broder array of questions, and not just the definition of a Senate session.
January 9, 2012, 4:41 pm