Exploring the Intricacies of Recess Appointments

The United States Supreme Court has concluded its sitting for December and all that is left is their Friday conference and issuing orders in pending cases on Monday, December 16th. On January 13th, all eyes will be on the Court as they hear arguments in the case of NLRB vs. Noel Canning which calls into question some Obama appointees to the National Labor Relations Board using the so-called Recess Appointments Clause. That clause states:

The President shall have the 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.

One of the main purposes of the writing the Constitution was to establish a functional federal government. One of the main worries, however, was placing too much power in the hands of a single entity be that entity the Executive, the Legislature, or the Judiciary. Obviously, during the early period of our Republic, there was not the expansive bureaucracy and plethora of federal agencies which exist today. There were, of course, federal courts which were established by the Judiciary Act of 1789 and judge positions that needed to be filled.

It is also a fact that the Legislature in the early years did not conduct business such as that which exists today. In fact, until the 20th Century, Congress was officially in session less than six months every calendar year. This desire to have a functional national government which required presidential appointees to certain positions was balanced against that fear of an “imperial presidency” by creating the notion of advice and consent. This basically requires that for high-level executive appointees, the Senate must confirm those appointees. However, what does a President do should a “vacancy happen” and the Senate is not in session? In order to keep the government “functional,” our Founders created the Recess Appointment Clause allowing the president to fill those vacancies without Senate confirmation, but that those filled positions would remain so only until the end of the next Senate session. It was a nice compromise at the time and there is very little mention of it in Madison’s notes on the Constitutional convention. Hamilton’s views, expressed in The Federalist Papers, notes that its purpose was to keep high level positions filled if a vacancy should occur during a congressional recess.

In the Noel Canning case, Obama made four alleged recess appointments to the National Labor Relations Board. This is an important federal bureaucracy that oversees labor relations in the country, conducts and certifies unionization efforts, and generally tries to maintain labor peace between workers and employers. These appointments were highly contentious when their names surfaced since they had ties to organized labor as union lawyers and such. Thus, the balance of power on the NLRB could be skewed in favor or unions, a huge donor base to Obama and Democrats in general. In order to prevent a recess appointment to the Board, the Senate was forced to hold pro forma sessions. These are technicalities where someone bangs the gavel, recognizes there is no business to conduct, then bangs the gavel again. Pro forma sessions satisfy the requirement that neither house of Congress can adjourn for more than three days without the consent of the other. In the normal course of congressional business, this is achieved by a concurrent resolution allowing both houses to cease business for more than three days. In the present case, no such concurrent resolution existed and a pro forma session of the Senate was in place when the appointments were made.

Generally it is understood that during a pro forma session, no business will actually be conducted. However, that is not always the case and, in fact, one very recent example may actually doom the Obama administration’s views here. The Office of Legal Counsel in the Department of Justice argues that a pro forma session is a mere constitutional or parliamentary technicality and that, for all intents and purposes, since no business is conducted, the Senate is in a de facto recess. However, in 2012 this same Obama administration used a pro forma session of Congress to actually conduct substantive business, namely the extension of the payroll tax holiday. So, on one hand you have the OLC saying it is a formality while on the other hand it was anything but a formality.

These breaks within a congressional session are called “intrasession recesses.” The controversy is whether they are, in fact, a “recess” as intended under the Constitution. In recent times, Congress averages 5-11 such “recesses/adjournments” during a session which lasts more than three days. They usually occur around holidays. If we accept the OLC view, then all any president needs to do is wait for the inevitable holiday break to occur in order to make an appointment without Senate approval.

No one is disputing the fact that a President can make a recess appointment between sessions of Congress. Each Congress lasts two years and there are two sessions. For example, the Congressional Record calls this current one the 113th Congress and there is the “2013 session” and the “2014 session.” The period between the two sessions- which usually lasts from late December coinciding with Christmas until after January 1st- is clearly an “intercession recess.” Also, the period that will occur after the 2014 midterms until the 113th Congress dissolves and the 114th Congress convenes on January 3rd, 2015 is another clear cut “intersession recess.” However, these NLRB appointments did not occur during an intersession recess.

The dangerous part of this line of thinking by the OLC and Obama administration is that another part of the Constitution specifically states that Congress sets their own rules. The OLC is essentially arguing that for practical purposes, the President can make a determination when the Senate is in recess. They further argue that as the period of time the Senate is not in non-pro forma session, the greater their argument. For example, a one week break for Thanksgiving gives the President’s position greater weight than a three-day break around July 4th. If we follow this administration’s position through to its absurd logical conclusion, then the period from say Thursday night until the Senate reconvenes on Monday morning is a “recess” under their definition. Clearly, this would render the whole notion of Advice and Consent obsolete.

The whole purpose of Senatorial advice and consent is to disallow the President from creating an, in effect, imperial presidency where he gets his way on appointments at all times. The Senate can certainly change their particular rules regarding appointments, as Harry Reid did with the so-called partial “nuclear option,” but the President cannot change the text or meaning of the Constitution. Subsequent congressional practice from the early 1900s onward actually shifted Congress from a part-time entity to a full-time entity (although you can’t tell it) with a series of little breaks around holidays which are NOT recesses. Hence, if not a recess- a clearly a pro forma session which exists here is deliberately not a recess- the appointment cannot stand. A presidential redefinition of the term “recess” is unheard of in constitutional jurisprudence and clearly violates the separation of powers by basically rewriting the rules of the Senate.

This is most definitely a power grab by Obama of epic proportions. Although he may not be the first to do so (Truman used this tactic), his reasoning is the most wide-ranging and expansive of executive appointment powers. As noted earlier, if they prevail before the Supreme Court in this line of thinking, any recess, adjournment or whatever of more than three days- pro forma session or not- would become a window of opportunity to make an appointment and bypass the Senate’s advice and consent role. In the interim, the partial “nuclear option’ (I hate this phrase) may have rendered this a moot subject going forward. The recent tactic of holding the Senate to 30 hours of debate on all appointments by the Republican leadership in the Senate is simply a stalling tactic and making a point to Harry Reid and the Democrats. At the end of 30 hours- whenever that occurs- the appointment will pass a cloture vote and final confirmation vote because all that is needed is 51 votes now. Ironically, this was a major roll of the dice by Reid. He is basically gambling on the fact that the Democrats will retain control of the Senate after the 2014 midterm elections. If not, then all one needs is 51 Republican votes to block any Obama appointment and pay back is always a bitch (don’t count on it- there is always a Murkowski, Collins, McCain or Graham willing to cross the aisle).

Given the original meaning and intent of the Recess Appointments Clause, it is difficult to see how the administration can prevail in this case. To do so would be a serious intrusion upon the separation of powers where the President unilaterally decides when Congress is in recess for practical purposes. Given the fact that bona fide recesses are of a short duration- a uniquely modern event in American politics- the recess appointment itself may be obsolete and exist only between the dissolution of one Congress and the swearing in of a subsequent Congress. Even in these cases, the period is of a short duration between the outgoing lame duck Congress and the incoming Congress.

In a certain sense, one can understand the frustration of any president in failing to get a nominee confirmed. Obama is not unique here. In fact, it was Harry Reid who “created” the pro forma tactic to block Bush appointees, yet now the situation is different to Democrats because it is a Democrat making the appointments. Again, this is liberal/Democratic hypocrisy at work. What was good for Bush is good for Obama, unless you have the mind of Harry Reid and/or the Office of Legal Counsel. Regardless, executive frustration with the legislative branch is certainly no excuse to rewrite Senate rules, make unilateral determinations of when a recess exists, intrude upon the separation of powers, and violate the United States Constitution. One would expect more respect for the Constitution from a president who alleges himself to be a constitutional scholar. But then again when that same president describes our framework for government as a “series of negatives,” he clearly fails to understand history at the least and renders himself un-American at the worst.