President Barack Obama has taken another move to enhance executive power in his recent dealings with Congress. He already declared war on Congress last year when he promised to use executive orders to institute his policies that would otherwise not have passed Congress. Additionally, his campaign strategy has been to “run against Congress” and allege that the body has not done anything to solve the nation’s economic difficulties. His latest move has been to appoint Richard Cordray to lead the Consumer Financial Protection Bureau, as well as three new members of the National Labor Relations Board without the legally required Senate approval.
Normally, when a President nominates a person to serve as a high-ranking official (such as a Supreme Court justice or a Cabinet member), the Senate must confirm them before they may begin their tenure. However, the Constitution (Article II, Section 2, Clause 3) specifically allows the President to make a temporary appointment to an executive branch position without Senate approval if the Senate is in recess. This “recess appointment”, as it is called, allows the individual to serve in the position until the end of the current Congress, which, in this case, would be January 2013.
While there is little existing commentary by the Founders on this provision, it is widely assumed it was included to maintain the continuity of government in at a time when the Congress was in session less than half the year. In recent years, however, the Congress is in session most of the year, making the recess appointment pretty much a legislative tool of the executive. (For more information on the President’s “legislative” powers, see our post on executive orders.)
No one disputes that the President may make a recess appointment. The catch in this case, however, is that Congressional Republicans assert that the legislature has legally been in session all along. Article 1, Section 5 of the Constitution states, “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days”. At the end of 2011,the two Chambers did not agree to adjourn for more than three days, so each has reconvened every three days to fulfill its constitutionally required duties. However, the House and Senate have been holding “pro forma” sessions where the Speaker of the House and the Senate President pro tempore appoint a Member simply to open and close the body. There is no debate and legislation is not usually passed (but there are exceptions). In the House, the Chaplain offers a prayer, and then the Chair leads the Pledge of Allegiance, approves the Journal, and concludes business. The Senate does not even bother with the prayer and Pledge. Nothing-or very little-occurs, but the bodies are technically meeting.
The technicalities are essentially meaningless, the Obama Administration counters. The lights are on, but nobody is really home. On the White House blog, Director of Communications Dan Pfeiffer called the pro forma sessions a “gimmick“. “But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running. Legal experts agree”, he writes. It also cites a 2010 Washington Post op-ed written by Steven Bradbury and John Elwood, two lawyers who served in the Bush Administration. Moreover, on the conservative-libertarian legal blog The Volokh Conspiracy, Elwood writes that pro forma sessions “do not interfere with the President’s recess appointment authority” because recesses have generally been construed to occur when the Senate is unable to actually offer its “advice and consent”, and this is manifestly the case when it holds pro forma sessions. The Justice Department issued a memo supporting the action, and its argument is largely the same (of course that’s a lot like a defense attorney claiming his client is innocent – that’s what he or she is paid to do).
In addition to the long-standing interpretation of when recess appointment power may be activated, the relative novelty to pro forma sessions undercut their legitimacy. According to assistant Senate historian Katherine Scott, current Majority Leader Harry Reid was the first to use pro forma sessions to block President George W. Bush from making recess appointments. “I had to keep the Senate in pro-forma session to block the…appointment. That necessarily meant no recess appointments could be made”, he said in 2008. Reid might have been the first to deploy the tactic, but the threat goes back further. According to Scott, during the Clinton Administration, Republicans threatened the move, but did not follow through on it. If we went well over 200 years without pro forma sessions to block recess appointments, the Framers probably did not anticipate that they would be used that way. (Incidentally, our post “Blocking Recess Appointments” has more information on the topic.)
The arguments in support of President Obama’s “recess” appointments seem compelling, but ultimately overlook a crucial fact: Through them, the Senate is providing its advice, but withholding consent (albeit without rejecting a nominee outright). Despite his current support of President Obama’s actions, Majority Leader Reid pioneered the use of the pro forma session to block nominees in 2007. He actually did this because during his negotiations with the White House over nominations, President George W. Bush would not agree to refrain from using the power to appoint Steven Bradbury to be Assistant Attorney General for the Office of Legal Counsel. Furthermore, Senator Reid also struck a pro forma deal in October 2010: He agreed to keep the Senate open to prevent President Obama from using the recess appointment power and Minority Leader Mitch McConnell agreed to proceed to confirmation of a number of the Presidents nominees. In both cases, it is clear that Majority Leader Reid saw the pro formas as part of the legislative give-and-take that marks the Senate’s dealings, both within itself and with the White House. Although their origins are relatively recent, the pro forma sessions are a crucial element in the way the Senate executes its advice and consent roles.
Although the majority can use a pro forma session as a legislative tool, an objection in this case is that they are being forced to use them: The Senate Republicans are filibustering the President’s nominees, so the Senate simply can’t confirm them even if it wants to. True, but the filibuster, like the pro forma sessions themselves, has become a crucial element of parliamentary procedure. When in the minority, both parties employ it to exact concessions from the majority. Despite constant calls for its reform or abolition, the two parties have made their peace with the filibuster. Senate Majority Leader Harry Reid could well use the “nuclear option” to do away with it, but he has refrained from doing so. It’s useless to complain that the Republicans are using the filibuster-the Democrats have used the same tactic and the past, and have threatened to do the same in the future.
A second objection also concerns Republican “obstructionism”: They control the House, so they are preventing the Senate from adjourning. This argument is a bit stronger than the first, but there are two crucial points that it ignores. First, the President is constitutionally empowered to adjourn Congress when the two Chambers are in dispute on when they are to depart. (This is a little known power and according to Senate historian Donald Ritchie, it has never been used.) If he wanted to make the appointments legally, he could have taken this action – though the implications of the President dismissing the Congress as if it were a parliament would have far reaching consequences well beyond a year-long appointment. Second, it is conceivable that the Senate would have stayed even if the Democrats still controlled the House. For instance, in 2010, the Democrats controlled the House. Thus, the agreement with Senator McConnell mentioned above was utterly unnecessary from the perspective of parliamentary procedure: He and the Democratic House could simply have adjourned, allowing the President to make his appointments. Although it is impossible to tell, McConnell and Reid might have come to some agreement in this instance as well. Sometimes the “big picture” demands that a lawmaker sacrifice certain smaller goals for larger ones. This is the way the Congress operates. It’s messy and slow and lacks the efficiency of the executive branch . However much it frustrates him, the Executive cannot define the rules of the Legislative. The Constitution makes it perfectly clear that each Chamber of Congress is responsible for determining its own rules for procedure .A pro forma session is simply an instance of the Senate using its procedure-making power to transact its business.
Just as the arguments in favor of President Obama’s recent actions overlook the pro forma sessions’ role as an indicator of the Senate’s judgment, it also overlooks an unfortunate tendency to use the rules in whatever way possible to secure victory. Victor Williams, a law professor, and a December 2011 Congressional Research Service report on recess appointments both point out that there is no minimum time specified in the Constitution that must pass before the President may make such appointments. This, combined with the interpretation that a recess is construed when the Senate may not discharge their advice and consent duties, can lead to an excessive use of the power. Logically speaking, why could he not make appointments overnight when Congress is out of session, or during extended lunch breaks? We aren’t claiming that any author cited here is arguing that the President can or should do that, but a politician could take their arguments and draw that conclusion from it. That might sound like a crazy abuse of the law, but aren’t the President’s supporters saying the same thing about pro forma sessions? Moreover, some crazy things have happened because some people adhere to the letter, but not the spirit, of the law. For instance, in 1903, President Teddy Roosevelt made nearly 200 appointments between two sessions of Congress. But how long was the recess? There was none, really. According to Betty Koed, a historian for the Senate speaking with NPR, the opening of the session was simultaneous with the closing of the previous; in the “split second” between them, the President acted. Parliamentary abuse has occurred in the past; nothing can stop it from occurring in the future. In going through the motions of pro forma sessions, the Congress is protecting itself from the encroachment of the executive branch.
A way to prevent absurd abuses of the law and parliamentary procedure is to abide by tradition and precedent, informal agreements, and commentaries upon the law (such as the Federalist Papers). These allow the government-and society as a whole-to operate smoothly when laws and parliamentary procedure are unclear or, prima facie, are insufficient to resolve the question at hand. President Obama’s Administration and his supporters recognize this, since they argue that a recess is construed to occur whenever the Senate is unable to provide “advice and consent”. Yet this definition is not to be found in the Constitution, which means it must be found someplace else. If the Administration found that commentary to be persuasive, why not the precedent that the Senate must be adjourned for more than three days? President Bill Clinton’s Office of Legal Counsel issued a memo advising that the Chief Executive must wait three days before making a recess appointment. More importantly, President Obama’s own Justice Department accepted this advice: In 2010, Neal Katyal, the deputy solicitor general, told the Supreme Court, “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.” Without saying that an administration should never revise its policies, it is not clear why this opinion is no longer valid and his new one is. Actions inconsistent with precedent can greatly disturb the political process and open up the door to nastier tactics in Congress and elsewhere; the Administration now bears the responsibility for this latest round of procedural warfare.
Granted, the procedural warfare is not anything new. President Obama did not start it, and the Republicans have done their fair share to exacerbate it. It is not much of a stretch to call pro forma sessions an abuse of parliamentary procedure-after all, there is something vaguely absurd about calling a handful of people in to go through a ritual that takes shorter than their commute to the Capitol. However, they are effective symbols of the will of the Congress and how it proceeds, and the Constitution makes it clear that the Senate should normally judge the qualifications of executive branch nominees. Thus, the controversy over whether or not the pro forma sessions are a legitimate tool of the Senate is misplaced. The real issue is that the Republicans and Democrats cannot productively work through their policy disputes, and, unfortunately, the recent “recess” appointments have made harmony even less likely.
Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.