Recess Appointments and Constitutional Games

The Constitution made an appearance recently when President Obama filled three seats on the National Labor Relations Board (NLRB) and named Richard Cordray to head the Consumer Financial Protection Bureau. It is the Senate’s power to confirm or reject presidential appointments, but a passage in the Constitution allows the President to “fill up vacancies” without that approval if the Senate is not in session.

Both the Senate and the House were in recess since before Christmas and nearly all of January, but they will have you believe otherwise. Republicans sought to prevent recess appointments with a scheme straight from the Constitution. Here’s how it works:

The Senate cannot be in recess for more than three days without the approval of the House. Accordingly, the Republican-controlled House denied the Senate permission for its January recess. But the House, too, was in recess, so to make that demand, it had to keep its own lights on with so-called "pro forma" sessions. At the Senate, all that was required to obey the House was for a single Senator — volunteered by the Republicans — to show up every three days to gavel sessions that could last as little as a few seconds.

That intricate minuet supposedly proved that the Senate was in session and the President was not free to make appointments.

The Justice Department gave the President its blessing, though, pointing out that, because the “standing order” of the Senate was that no business may be conducted during the pro forma sessions, it was incapable of receiving and acting upon appointments by the Executive. Ergo, the President was free to make the recess appointments.

A Wall Street Journal editorial titled “Contempt for the Constitution” said hold it right there. The Senate “does most of its work by unanimous consent, meaning without objection from present Members and without a vote or quorum”. So that single Senator, the only one present, could rescind the standing order and….

Enough of that. Congratulations for getting this far and welcome to the world of Constitutional convolution. The purpose of the rules is clearly to keep one or the other house of Congress from wandering off and neglecting its duties, but the rules are now being used to set up intricate gotchas to hog-tie the Executive branch with sham sessions.

Republicans are irate. Charles Grassley, Senator from Iowa, called it “President Obama’s blatant attempt to circumvent the Senate and the Constitution”. No mention of the impropriety of refusing to approve reasonable presidential appointments. And of course no mention of the reason for doing so — that Republicans do not like the Dodd-Frank financial reform bill, which established the Consumer Financial Protection Bureau. That the Act was passed by Congress carries no weight. The new ethic is to reject the democratic process by crippling any disliked law. So, because the new consumer bureau legally cannot act until a director is in place, the Republican intent was to block anyone Obama proposed.

Republicans also moved against the Roosevelt-era NLRB, which passes judgment on union matters. From December 2007 until March 2009, term expirations had left the five-member board with only two members. That’s not enough for a quorum, so the board could take no action. Republicans in the Senate blocked any appointments to keep it that way.

The question now is whether this dispute will move to the courts. And whether, if it does, it will be judged narrowly, which would string together several threads of the Constitution to say the Congress can do whatever it wants, or whether the court would look beyond to motive — the deliberate obstruction by Congress of a law passed by that Congress — and find an abuse of Constitutional rules.

Did we forget to mention, though, that it’s not just Republicans? The Democrats invented the ruse of pro forma sessions in 2007 to quash George W. Bush appointments. It’s reprehensible by all, and such cynical throttling of the functions of government is one of the reasons the approval rating of Congress currently stands at historic lows of 9% to 14%, depending on which poll.