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Pro Forma Senate Sessions and The Power to Make Recess Appointments:
Marty Lederman offers a very interesting post on this timely topic over at Balkinization.
Gaius Marius:
Of course, if our "esteemed" U.S. Senators were held to the same work schedule that the average citizen is held to in the private sector, there would be no two-week long Thanskgiving break on Capitol Hill giving rise to the ridiculous practice of pro forma sessions to preclude recess appointments.
11.23.2007 8:08am
Owen Hutchins (mail):
And if our "esteemed" President really thought the Constitution mattered, the issue wouldn't have come up.
11.23.2007 8:22am
pgepps (www):
We have enough problems with "permanent government" in D.C. without urging Senators to be even *less* resident among their constituents than they already are.
11.23.2007 8:48am
Brian G (mail) (www):
You're right Owen. Bush is the first President ever to use the recess appointment for political reasons. No one

Or, your copy of the Constitution might be missing Article II, Section 2:

"The President shall have 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."


Funny how often Bush using his power automatically means "abusing" his power." If you don't like recess appointments, then get the Constitution amended to eliminate them.

By the way, Justices Holmes and Brennan were originally recess appointments.
11.23.2007 11:26am
IHaveAQuestion:
The point of article II mentions that the vacancy may happen during the recess of the senate. Why is it that vacancies that exist prior to the senate recess may be filled during the recess then?
11.23.2007 11:34am
Anderson (mail):
IHAQ, don't read the Constitution too closely -- you'll annoy the "originalists."
11.23.2007 12:51pm
Simon Dodd (mail) (www):
I wrote a short post about this issue a couple of days ago - I agree with Michael Rappaport's assessment of the recess appointments clause, and I'd attack this from a slightly different angle than Balkin (alluded to by a previous commenter). To wit, the textual authorization for the President "to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the[] [Senate's] next session" can't reasonably be read as permitting the President to fill up all vacancies extant when the Senate goes into recess. The objection from "[t]he administration and Congressional Republicans ... [to] the Democratic tactic ... [is] that 190 nominations [a]re pending in the Senate," which is precisely the circumstance I don't think that the recess appointment can validly be used in, despite modern practice to the contrary. Thus, even before one reaches the issues Balkin talks about, the mere fact that the vacancies exist now yet the Senate is not in recess now closes the door on the recess appointment process, in my view.
11.23.2007 1:55pm
Simon Dodd (mail) (www):
Anderson, the snark is unwarranted - the Rappaport article I referred to above (its The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005), for those who doesn't want to click through), for example, asks precisely that question yet is very much an originalist analysis. The only people who might get annoyed about such a question are the defenders of the present administration. Both of them.
11.23.2007 1:58pm
Simon Dodd (mail) (www):
Sorry, wires crossed: I kept referring to Balkin, but recognize it's Lederman's handiwork. Mea culpa.
11.23.2007 2:01pm
Jay Myers:

To wit, the textual authorization for the President "to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the[] [Senate's] next session" can't reasonably be read as permitting the President to fill up all vacancies extant when the Senate goes into recess.

I think that is an unjustified interpretation. Why would the framers give the president the power to fill a vacancy during a recess? Presumably because they felt that leaving the position empty until such time as the Senate was again in session and could confirm a repacement would be detrimental to the good functioning of the government. Wouldn't that same reasoning apply to vacancies for whose nominees the Senate had refused to hold confirmation hearings? If the Senate is going to put campaigning in their home state above their constitutional duty, then why shouldn't this power be invoked to keep the government running?

As for "The only people who might get annoyed about such a question are the defenders of the present administration," I would remind you that Clinton also used recess appointments to fill vacancies that occurred before the Senate went into recess.

Here's a more interesting question. If the House is in recess but the Senate isn't because it is having pro forma sessions, then does this qualify as a disagreement about "the time of adjournment"? Because if it does, the president has the power under Article 2, clause 3, section 3 to adjourn both houses until "such Time as he shall think proper", which might involve hell freezing over. Actually, the latest he he could adjourn them to would be December 2008 but I can dream, can't I?
11.23.2007 6:06pm
Simon Dodd (mail) (www):
Jay, I'll defer to Rappaport for the most part, but justified or otherwise, I think it's the only reading that follows from the text; the alternative reading would either substitute "exist" for "happen" (since "exist" wasn't then and isn't now a synonym for "happen") or it would render "that may happen" surplussage (since "to fill up all vacancies during the recess of the Senate" would accomplish the same thing). And as to Clinton's practice, I recognized in my earlier comment that the interpretation I'm advancing is not descriptive of current practice.
11.23.2007 7:03pm
Steve2:
What does it matter what the appropriate interpretation of the recess appointment clause is, when there's no valid reason for that clause to have stuck around after the Wright Brothers, Henry Ford, and Alexander Bell ended the travel-time and communications-lag problems that were the only justification for it to begin with?
11.23.2007 10:10pm
Hoosier:
Simon--If the /practice/ has been that previous presidents can make these sorts of appointments, then your point is . . . well, pointless. And since you inserted the caveat "despite modern practices," you clearly acknowledge that it has been the practice.

This is really judicial activism: Interpret the Constitution as precluding a president from acting as president simply because you don't like him.
11.24.2007 5:28pm
ReaderY:
If people really want to play hardball, what prevents the Senate from calling every week a new "session"?
11.24.2007 8:16pm
Andrew Hyman (mail) (www):
Isn't the whole purpose of this provision of the Constitution to enable the President to appoint people to vacancies at a time when the Senate is unable to do so?

The Senate cannot fill vacancies when there is no quorum. So, if there is no quorum for a substantial time of nine days or more, shouldn't that qualify as a "recess"?

Senator Webb is a big guy, but he's not a quorum.
11.25.2007 2:37am
Hoosier:
Andrew: "Senator Webb is a big guy, but he's not a quorum."

(Shh. Don't let him hear you-- I think he packs heat.)
11.25.2007 8:12am
Steve2:

Isn't the whole purpose of this provision of the Constitution to enable the President to appoint people to vacancies at a time when the Senate is unable to do so?

The Senate cannot fill vacancies when there is no quorum. So, if there is no quorum for a substantial time of nine days or more, shouldn't that qualify as a "recess"?


Thing is, there's no such thing anymore as a "time when the Senate is unable to do so." Hasn't been for years. Setting aside that every Senator can now be in DC in under 24 hours from the moment a vacancy occurs - something that was decidedly impossible when that clause was put in - the Senators could, very possibly (granted, there'd probably be a lot who were interrupted during something else) give their advice &consent or advice &rejection via a conference call on in even less time if, for some reason, filling the vacancy was that urgent.
11.25.2007 10:45am
Andrew Hyman (mail) (www):
Steve2, it's always been physically possible for a majority of the Senate to remain in the capitol building all year long, without interruption. It never has happened, and never will happen, but it's always been possible.

Likewise, it's always possible for the Senate to change its rules so that a quorum can be formed in a conference call, instead of on the Senate floor, but that hasn't happened either.

If the President gives a reasonable notice of an impending recess appointment, and a quorum does not show up on the Senate floor, then it seems to me the recess appointment is legitimate.
11.25.2007 1:52pm
NickM (mail) (www):
This is an area where the solutions are worse than the problem. The Senate can hold pro forma sessions to prevent a recess. They then are open to public charges that they are a do-nothing Senate (a 22-second session can fit in a TV commercial) and are politically accountable to the voters.

Nick
11.25.2007 2:55pm
Andrew Hyman (mail) (www):
You may be right, Nick. However, the same argument could be made in the event that Harry Reid were to start issuing orders to the Pentagon. "Let the voters decide."

Here's how the Senate Judiciary Committee itself explained what a "recess" is in 1905:

the period of time when the senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments....Its sole purpose was to render it certain at all times there should be, whether the Senate was in session or not, an officer for every office, entitled to discharge the duties thereof.


Of course, the Senate Judiciary Committee could have been wrong in 1905, but I suspect not.
11.25.2007 3:21pm
Steve2:
Andrew, I strongly disagree. The recess appointment clause, in my mind, has been wholly illegitimate since the 1940s at the latest.
11.25.2007 8:11pm
Andrew Hyman (mail) (www):
Steve2, do you think the following provision of the Constitution is illegitimate as well?

[I]f Vacancies [in the Senate] happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.


Do you think that governors can no longer appoint U.S. senators? Or that a state legislature can prevent such appointment by conducting "pro-forma" sessions?
11.25.2007 10:10pm
Andrew Hyman (mail) (www):
Note the provision I quoted in my previous comment was superceded by the 17th Amendment:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such
vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.


Nevertheless, the provision of the original Constitution sheds consdierable light on the meaning of the word "recess" (the word "session" was not mentioned).
11.25.2007 11:39pm