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.