Recess Appointments

President Obama set off a political firestorm by asserting his power to appoint high-level officials while the Senate is in recess. Get a legal expert’s take on the constitutional issues behind this controversy.

Adam Freedman
January 23, 2012

Today’s topic: Recess Appointments      

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

What’s The Fuss Over Recess Appointments?

The very first weeks of 2012 brought a political firestorm, and a possible constitutional crisis to Washington. It’s all about the seemingly arcane issue of the president’s power to make “recess appointments.” The US Constitution requires the president to submit all major appointments to the Senate for a vote – except that he can make temporary appointments when the Senate is in “recess” – that’s a recess appointment. In early January, President Obama appointed four executive officials without asking the Senate. The President said that the Senate was in recess, but the Senate said it was not. Hence the controversy inspiring Op-Ed pieces in the New York Times, Wall Street Journal, and just about every other major newspaper. In today’s article, I’ll take you through the issues. 

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The Constitution Requires Senate “Advice and Consent”

Why do people care about recess appointments? For the president and his supporters, they are a way to ensure that the administration continues to function despite congressional resistance. On the other hand, some members of Congress (generally those who oppose the president), argue that recess appointments are an exception to the usual checks and balances – and that the president is using such appointments to name controversial officials who wouldn’t otherwise get Senate approval.

Article II of the US Constitution gives the president power to appoint all ambassadors, federal judges, department heads, and other executive officers. But all high-level appointments require approval by the Senate – this is known as the requirement of “advice and consent.” The Senate does not take this power lightly. Throughout American history, but particularly in recent decades, the Senate has used its power to block the nominations of Supreme Court judges, Cabinet officers, and a variety of other federal officials. 

Recess Appointments Don’t Need Senate Approval

But sometimes the Senate isn’t around – it goes on recess – and the president may need to fill up some vacancy in the cabinet or on the bench. The Founding Fathers had an answer: the Constitution allows the president to appoint officers “during the Recess of the Senate” and those appointments last until the end of the Senate’s next Session. In other words, the president can fill any vacancy during a recess, and then he has until the end of the next session of the Senate to get confirmation to make the appointment permanent.

In January 2012, the Senate was not officially in recess, but it was only conducting brief “pro forma” sessions, which means, according to a New York Times report, that a single senator would come into the Senate chamber every three days to bang the gavel. Generally speaking, no business is conducted at pro forma sessions.  In the midst of these pro forma sessions, President Obama appointed Richard Cordray to serve as director of the Consumer Financial Protection Bureau, and he also appointed three members of the National Labor Relations Board.  

What is a “Recess?”

Republicans in Congress immediately condemned President Obama’s recess appointments as a violation of constitutional checks and balances. The Department of Justice, however, has issued a memo concluding that the pro forma sessions were sufficiently like a “recess” to enable the president to use his power to make recess appointments. 

The issue is not simple. For one thing, the Constitution doesn’t define the word “recess.” But the Constitution does provide, in Article I, that neither House of Congress can adjourn for more than three days without the consent of the other House. In this case, the House of Representatives did not consent to the Senate adjourning for more than three days. So from that perspective, the Senate could not have been in recess in early January 2012. The administration, however, argues that the intent of the Constitution is to define a “recess” as any time when the Senate is not in a position to provide “advice and consent,” and so (the argument goes) those pro forma sessions would qualify as a recess. On the other hand – yes, there’s yet another hand – the Senate can, and does, conduct some business during pro forma sessions, using a mechanism called “unanimous consent.” In December 2011, for example, the Senate passed a payroll tax holiday while it was in a pro forma session.  

It’s true that Congress appears to be using its pro forma sessions for the express purpose of preventing the president from making recess appointments. But to be fair, that appears to be a bi-partisan sport. In 2007 and 2008, Congress used the same “pro forma” strategy to prevent then-President Bush from making recess appointments. Perhaps “all is fair” in love and war – and politics!

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