The Constitution Is Clear On Recess Appointments

 I have just had the privilege of reading John Yoo’s perceptive remarks on the recess appointment, and think that within the framework of the current law, he has to be correct that it is for the Senate and not for the President to determine whether the Senate is in session.  The usual view in all cases is that the internal rules of each institution govern its operations, and for the President to say that the Senate is not in session when the Senate says that it is, introduces a set of constitutional confrontations that we would be far better off doing without.

The difficulties here, moreover, will start right from day one because the conflict over who is in charge will manifest itself long before any law suit can take place.  Any order from Richard Cordray (one of my ablest former students, with whom I have serious policy differences, to no one’s surprise) will be ignored by those people who say that his appointment is not valid.  Given the huge powers associated with the office, the number of regulations that it churns out, and the number of demands that it makes for information and cooperation, the fights will be instantaneous, numerous, and the outcomes will be inconsistent.

We have just seen that the Supreme Court had held that the National Labor Relations Board cannot operate with only two members, which is one sign that the question of legitimate appointments is an issue that will not go away in this age of increased polarization.  This issue will likely reach the Court if there is no political solution, and it will surely highlight the genuine divisions over the structure of Dodd-Frank, where the Republicans rightly point out that the act vests too much power in one person for too long a time, given the 5-year term of office.

At a more general level, I have never understood the logic of the recess appointment.  What does it say that a person who we know cannot get confirmed in the ordinary fashion by Senate vote can be put into office for the duration of the Congressional session?  Shenanigans like this introduce perverse incentives for the Senate to stay in session forever to block the appointment, and it removes one of the major checks in our elaborate system of checks and balances when the President pounces on a recess to fill the position with the rejected candidate.

John’s post forced me to read the clause on recess appointments through.  Here is what it says in Article II, Section 3:  

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.  

The key words are vacancies “that may happen during the Recess of the Senate.”  Those words do not describe the situation with Cordray or with Craig Becker who is now out of office.

What they mean is this: if the vacancy arises in the gap between terms, the President does not have to travel light just because the Senate is not in session.  In the founding period, Congress was not in perpetual session to say the least, so this provision meant that if there was no ability to go through the usual process of nomination and confirmation, the President could act on his own.  But this vacancy did not “happen,” i.e. arise, during the recess.  It carried over from before.  At this point the correct construction of the provision is that no one can be appointed during the recess because there was an opportunity to work out the issue earlier.  The person to whom this most powerfully applies is the nominee who has been rejected, but accurately read it would cover any substitute nominee as well.

One major design feature of separation of powers and checks and balances both is to curb excessive strategic behavior.  The right reading on recess appointments avoids the unprincipled game-playing that has been tolerated for far too long.  I would hope that one of the many people who challenges this particular appointment also challenges the interpretation commonly given to the language of Article II, Section 3.

Update: Law Professor Mike Rappaport of the University of San Diego has further clarifying remarks on originalism and recess appointments over at The Originalism Blog.

  1. Crow

    I don’t think the delay in confirmations has all that much to do with the nominees themselves.  In most cases, holding up confirmations has become a weapon one party uses to extract concessions on other matters from the President’s party.

    I think you’re right, Mendel, and this is an area that I’d like to see some reform in.

    With regard to the particular case in question, the President assumed this authority–an authority I do not believe he has, given all the reasons laid out by Profs Yoo and Epstein–in order to avoid the lengthy process that getting Cordray through the Senate would be as a result of Republican obstructionism.

    That obstructionism itself is not without some good grounds–the position Cordray is going to occupy will generate an enormous new regulatory burden–but the fact is that Cordray does seem to be fit to hold the office, even stipulating the office itself is bad and we should campaign on repealing Dodd-Frank and replacing it.

    And that’s the point. The law is as it stands. Confirm Cordray, and start using campaigning against Dodd-Frank’s numerous excesses.

  2. AmishDude

    “It’s gotten to be a common occurrence. When Congress has a scheduled recess, the Democratic leadership keeps the Senate (and sometimes the House) in pro forma session in order to prevent any administration recess tomfoolery.”

    Paul Kiel, Talking Points Memo….February 19, 2008.

  3. KC Mulville

    Under Obama’s logic, why would any president nominate any nominee except while the Senate is in recess? Or on a weekend?

  4. AmishDude
    KC Mulville: Under Obama’s logic, why would any president nominate any nominee except while the Senate is in recess? Or on a weekend? · Jan 4 at 4:34pm

    There’s no logic here. Democrats have sold their souls. They are the party of Faust.

  5. Trace

     Professor — What about the following language? 

    “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”

    That certainly sounds as if the House and Senate must determine jointly whether and when they have ceased to be in session.

  6. Mendel

    I agree fully with Profs. Epstein’s and Yoo’s opinions that this appointment is invalid on many different levels. 

    What bothers me is the increasing trend (pointed out by AmishDude above) for both parties to delay confirmations indefinitely.  It’s one thing when the Senate uses the filibuster and similar tactics to prevent legislation from proceeding: keeping Congress from passing too many laws is a benefit. However, refusing to confirm judges or important officeholders (i.e. not the members of the NRLB) en masse for political reasons makes a mockery of the “advise and consent” function of the Senate.

  7. AmishDude

    The interesting thing about the Bush example is that it lead to a number of compromises.

    But if Senator Reid wanted to change the rules of the Senate so that executive branch appointments must get an up or down floor vote after a certain length of time, I’m sure he could cut a deal for that.

    What he knows (hopes) is that a Republican president won’t do what Obama does.  It’s an Alinskyite assumption that they will use our virtue against us.

    I think he’s wrong.  I think the Bush admin would have been very happy to make appointments during the mockery of a pro-forma session and I think most Republican presidents would do so, citing this as precedent.

    Ironically: Robert Byrd would not have stood for this.

  8. Paul A. Rahe
    C

    The source of the trouble lies in the fact that we abandoned the separation of powers long ago. Executive agencies unite the three powers. They exercise the legislative power by issuing regulations that have the force of law. They exercise the executive power by enforcing them, and they exercise the judicial power through administrative law courts within the agency. In approving or not approving a nominee, Congress is deliberating to whom they will delegate legislative power. In the circumstances, this is just about the only leverage Congress possesses.

  9. BlueAnt
    Richard Epstein: The key words are vacancies “that may happen during the Recess of the Senate.”…  What they mean is this: if the vacancy arises in the gap between terms, the President does not have to travel light just because the Senate is not in session.

    This seems to be the inarguably correct interpretation.  But my hazy impression is that Presidents in recent memory have never treated this as the guiding limitation.

    So what are the odds of getting the Supreme Court to reverse course and interpret it this way?  (or is this even a matter for the courts?)

  10. Bryan G. Stephens

    Dr. Rahe,

    I have long seen this as a problem. For our legal scholars could a President decide to walk it back thus:

    Sign an Executive Order stating:

    1. All regulations not approved line by line by Congress (like the Tax Code) are considered to be un-consitutional by the Office of the President.Congress cannot legislate away its right to legislate.

    2. All agencies are directed to cease creation and enforcement of any regulations of these types until such time that Congress passes into law these regulations in that line by line fashion.

    It seems to me the POTUS can direct the executive branch any way he chooses.

    Legally, would this be within the bounds of the Constitution?

  11. Jesse Duddy

    Mr. Stephens,

    That is an interesting idea, it certainly would not work as to all regulatory bodies. That is there are entities, such as the securities and exchange commission or the NLRB who are not under the control of the president. That is to say their members cannot be removed except for cause, and the appointments are staggered and they general have to have a balance of both republican and democratic members. At least as to those entities, the president could not direct them to stop regulating since he has no power to make them do what he wants. I guess as to non-independent agencies the president could direct them to do anything he wants, as non-enforcement of a regulation is not review-able under the administrative procedure. However, were he to actually direct agencies to repeal those regulations, that would be reviewable.  

  12. Jesse Duddy

    Professor, 

    After reading both your and Professor Yoo’s comments on this I had a wonder, would a challenge to the legality of an order issued by Mr. Cordray be bounced from court as a non-justiciable political question? Under Baker v. Carr, unless I am missing something, it seems that review of such an action might be problematic. 

  13. Valiuth

    I don’t get why the president (this one or the last) does not just submit to the senate a panel of possible appointees for each vacant slot. Surely if he submits 5 names one should be suitable for the Senate. 

  14. Jesse Duddy
    Valiuth: I don’t get why the president (this one or the last) does not just submit to the senate a panel of possible appointees for each vacant slot. Surely if he submits 5 names one should be suitable for the Senate.  · Jan 4 at 8:38pm

    Its an interesting idea, some states use a system some what like that to appoint their judges. The problem with in though is if there is no check at all on whose names go on the list it does not too much to empower then entity that picks the name to check the person who creates the list. So take your example, say we apply your rule to Obama making an appointment to the CFPB. It is pretty easy to come up with a list of 5 rabid consumer protection types, thus leaving the Senate no real choice but to pick the least offensive of 5.  Same thing with the NLRB, it is easy to come up with a list of 5 union presidents.  

  15. Bryan G. Stephens

    It seems to me any regulation on a non-independent board is an executive rule I could overturn.

    As far as things like the NLRB, if I refused to enforce their rules on the grounds I find them un-constitutional, what does that mean? If Obama can ignore DOMA, could someone t ignore NLRB? Do they have a police force and jails?

    Obviously, a POTUS could refuse to appoint anyone to NLRB to help kill it off for a while.

  16. Mendel
    Valiuth: I don’t get why the president (this one or the last) does not just submit to the senate a panel of possible appointees for each vacant slot. Surely if he submits 5 names one should be suitable for the Senate.  · Jan 4 at 8:38pm

    I don’t think the delay in confirmations has all that much to do with the nominees themselves.  In most cases, holding up confirmations has become a weapon one party uses to extract concessions on other matters from the President’s party.

  17. Jesse Duddy

    Well, yes who ever is enjoined or fined by the NLRB refuses to comply, then the president could refuse to let the Justice department prosecute. However, it is important to not that would be a much more aggressive assertion of executive power then we see in the DOMA situation.  That is, Obama is not refusing to enforce DOMA, he is refusing to defend it in court. For example, the IRS is still not affording gay couples married in one of the states to file taxes as married persons and so on. The practical, as opposed to symbolic effects, of refusing to enforce a federal law or regulation are minimal since congress can simply appoint a lawyer. If the president refuses to enforce a law, it is dead letter since Congress has no police force or jails. Thus, the President refusing to enforce all regulations not enacted by congress would produce a much greater constitutional crisis than DOMA. 

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