‘An end run around the Senate and the Constitution.’ “I will keep the Senate in pro forma session to block the president from doing an end run around the Senate and the Constitution with his controversial nominations.”However, the Congress was in recess at that time so, even as Obama recognized at the time, this was within the President's constitutional powers. That is why Reid then adopted the tactic of not going out of session in order to block Bush from any more recess appointments.
Now Obama has done an even bigger end-run around the Constitution since the Congress is not in recess. John Steele Gordon explains how the House blocked this from happening.
The Constitution requires that neither house of Congress can recess for more than three days without the consent of the other house. The House of Representatives has not given that consent and has been holding pro forma sessions every three days, forcing the Senate to do likewise. When Democrats controlled the Senate in the last two years of the Bush administration, they held these pro forma sessions during recesses precisely to prevent President Bush from using the recess appointment power, which he didn’t.And according to Clinton's Justice Department, these three days are enough to determine that the Congress is indeed in session.
In 1993, however, a Department of Justice brief implied that the President may make a recess appointment during a recess of more than three days. In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. This “Adjournments Clause” provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ….”Arguing that the recess during which the appointment at issue in the case was made was of sufficient length, the brief stated: “If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate’’s ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. … It might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant. …Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.”Remember that this recess appointment provision was put in the Constitution in the 18th century when it was envisioned that Congress would be part-time and out of session much of the year. In those days before mass communication and quick transportation, the Founders thought that we needed a way for the President to put people into place when Congress was back home and couldn't be expected back for a long time. It was certainly never envisioned that three days would be a long enough break to assert that Congress, without having formally going into recess, could be asserted to be in recess unilaterally by the President. That would be a total violation of the separation of powers, the sort of thing that Democrats were always warning about George W. Bush, but now seem not to worry about Obama doing.
Oh, and by the way, Obama's own Solicitor General, Neal Katyal, has argued the opposite view before the Supreme Court of whether a president can make recess appointments when the Congress is out for three or fewer days.
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?But what's a little consistency and respect for the Constitution when you're trying to win political support from your base?
MR. KATYAL: The -- the recess appointment power can work in -- in a recess. I think our office has opined the recess has to be longer than 3 days. And -- and so, it is potentially available to avert the future crisis that -- that could -- that could take place with respect to the board. If there are no other questions –
CHIEF JUSTICE ROBERTS: Thank you, counsel.
As Gordon writes,
It will be interesting to see if a court challenge develops. Courts hate getting in the middle of a dispute between the other two branches. But is the president not arrogating to himself the power to decide when Congress is in recess? If he has that power, what else can he dictate to Congress?Do the Democrats really want this to stick as a precedent the next time there is a Republican president, perhaps even a little over a year from now?
And the whole question about whether or not the Congress is truly in session isn't Obama's only problem with this appointment. Mark A. Calabria at CATO looks at the actual wording of the law establishing this position.
More importantly the “recess” appointment of Cordray doesn’t solve the President’s problem. The Dodd-Frank Act is very clear, even a law professor can probably under[stand] this section, that authorities under the Act remain with the Treasury Secretary until the Director is “confirmed by the Senate”. A recess appointment is not a Senate confirmation. Now don’t ask me why Dodd and Frank included such unusual language, they could have just given the Bureau the new authorities, but they didn’t.But hey, what does Obama care about the actual wording of a law? He certainly doesn't care about the wording of the Constitution.
UPDATE: Over at Volokh, John Elwood argues in favor of the president to be able to make appointments despite these pro forma sessions since, otherwise, the Senate would be able to block the president's nomination powers. I wonder if that is enough of an objection. If Elwood is correct, than the use of the filibuster of a nomination would also be interfering with the power of appointment.