By Marty Paone
The President’s use of his power to recess appoint Richard Cordray to the position in charge of the Consumer Financial Protection Bureau, along with three NLRB appointments, has been met with, not unexpectedly, howls of outrage by Republican leaders. Their complaints are understandable since it’s been over 60 years since a recess appointment has been made during such a short Senate recess.
However, the President’s decision actually restores to the executive branch the Constitutional power, used by Presidents of both parties, to make recess appointments. During the modern era, former Majority Leader Byrd threatened not to recess unless he had an agreement with the President as to who, if any, he would recess appoint; Senator Reid took that to the next level by initiating the use of pro forma sessions to deny President Bush the ability to make recess appointments after he felt he had been misled as to the President’s intentions during one particular recess. The Republican leadership in this Congress has continued that policy in order to deny President Obama the ability to make such appointments.
The Constitution requires that in order for either the House or the Senate to be out for more than three days there has to be a concurrent resolution agreed to by both Houses to permit that recess. So the House’s refusal to pass an adjournment resolution, as is the current case, means that the Senate, and the House, have both been required to come in session every three days for less than 30 seconds to comply with that part of the Constitution.
During President Clinton’s tenure, the Department of Justice reasoned that a recess of more than three days was sufficient for a recess appointment, using the logic that the Constitution requires an adjournment resolution for either House to be out of session for more than three days. However, they never put that into practice. Instead, they continued the policy used under Presidents Reagan and Bush of requiring no less than a 10 day recess for such an appointment. But these assumptions do not square with the fact that, in the past, shorter recesses have been used to make such appointments and that the courts, while upholding the President’s authority to make recess appointments, have never ruled on what constitutes the necessary time for a recess.
On December 7, 1903, President Teddy Roosevelt made over 160 recess appointments during a recess of less than one minute between the bangs of a gavel ending one session of Congress and beginning the next session. It was, as Roosevelt put it, a "constructive recess."
Forty-five years later on December 31, 1948, the first session of the 80th Congress ended and the second session began on January 3, 1949. During that two day recess, on January 1, 1949, President Truman recess appointed Oswald Ryan to be a member of the Civil Aeronautics Board.
Some will note that these two instances occurred between sessions of a Congress. But one need not be a strict constructionist to see that nowhere in the Constitution does it say that this power to make recess appointments is limited to only those recesses which occur between sessions of Congress. The fact of the matter is simple. The Senate is not in session for business and will not be until January 23, 2012-- the very order for the pro forma sessions states, "for a pro forma session only with no business conducted."
Undoubtedly someone will bring this to court, and maybe, once and for all, the courts will give some clarity to the situation. Time will tell.
Meanwhile, it’s an election year and the forecast is for continued frost on the Hill.