The Volokh Conspiracy

One justification for President Obama’s decision to make several recess appointments this week is that the appointments were necessary to prevent partisan obstruction from disabling federal agencies from performing their duties.  In the case of Richard Cordray, it was clear that Senate Republicans would block his appointment as head of the Consumer Financial Protection Board (CFPB) due to their opposition to how the Board is structured.  A recess appointment was the only way to put Cordray (or anyone else) in place to run the Board.

In the case of the National Relations Board, the President was concerned that the Board would lack a quorum.  As the Supreme Court confirmed in New Process Steel v. NLRB, there must be three NLRB members for the Board to have a quorum, and there were only two Board members remaining after Craig Becker’s recess appointment expired on January 3.  Yet if the NLRB was to lack a quorum it would not have been because Senate Republicans blocked the President’s most recent nominees.

Two of those given recess appointments — Sharon Block and Richard Griffin — were only nominated to the NLRB on December 15, just before the Senate went into its “pro forma” session during which no business was to be conducted. Yet even had the Senate been conducting business over the holidays, neither Block nor Griffin could have been confirmed.  As the Heritage blog reports, the Senate’s Health, Education, and Labor Committee had yet to receive the relevant paperwork and background materials on these two nominees — materials that are typically required, in addition to a background check, for Senate consideration.  (The third nominee to receive a recess appointment to the NLRB was Republican Terry Flynn who had been nominated last January.)

It is certainly possible — perhaps even likely — that Senate Republicans would have opposed confirmation of Block or Griffin, but we’ll never know.  The two were given recess appointments before they could be considered, let alone opposed.  In this regard, the Griffin and Block appointments were something of a preemptive strike.

The recess appointnment claus is an “odd clause” — and perhaps even the “oddest clause of all” in the Constitution, according to BU’s Jay Wexler.  However odd it may be,  it’s receiving lots of attention due to the President’s decision to make four recess appointments even though the Senate maintains it had not formally recessed.

Michael Rappaport makes the originalist case against the President’s recess appointments here.  Likewise, Richard Epstein and John Yoo both argue President Obama’s recess appointments are unconstitutional, as do David Rivkin and Lee Casey. (Note that some of these arguments would have applied to prior recess appointments, including those by President Bush.) At NRO’s Bench Memos, Matthew Franck is unconvinced.  Recall our own John Elwood has also taken the opposite view.  Yale law student Alexander Platt also has a timely student note on the legality of recess appointments,“Preserving the Appointments Safety Valve,” arguing against the use of pro forma sessions to prevent recess appointments from being made.  (Hat tip: Lawrence Solum)

Legal scholars also debated the acceptatbility of recess appointments during the Bush Administration.  Marty Lederman, for example, argued that the recess appointments clause can only be used a) during intersession recesses to fill b) vacancies that occurred during the recess.  The first argument was used (unsucessfully) in an effort to unseat Judge William Pryor who received a recess appointment to the U.S. Court of Appeals for the 11th Circuit.

Whatever the merits of the respective legal arguments — and whether or not they are ever resolved in court — at the Monkey Cage, Sarah Binder observes that Presidents of both parties have made intrasession recess appointments for quite some time, and sees little reason for the practice to stop.  But, as Ezra Klein notes, there are limits to how often this tactic will be used (more here).

While academic commentators seem to have maintained their prior positions, the same cannot be said of political leaders.  As The Hill reports, Senate Majority Leader Harry Reid supports President Obama’s recess appointments even though he previously argued pro-forma sessions were sufficient to prevent such appointments from being made.

UPDATE: Here is some additional commentary from Bruce Ackerman, Lawrence Tribe, and Adam White.

The Consumer Financial Protection Board was not the only beneficiary of a recess appointment today. The AP reports the President also made three recess appointments to the National Labor Relations Board — two Democrats and one Republican. The White House release is here.

The AP is reporting that President Obama will give former Ohio Treasurer Richard Cordray a recess appointment today to head the new Consumer Financial Protection Board.  Cordray was nominated to the post some months ago but Senate Republicans have blocked his confirmation due to their opposition to the CFPB’s structure, in particular the lack of meaningful legislative or executive oversight.

If the AP’s report is correct, President Obama’s decision is particularly interesting because the Senate has not officially recessed, at least not according to Senate traditions.  As the AP story notes, the Senate has been having pro forma sessions every three days for the express purpose of preventing there from being a recess during which recess appointments could be made.  Though done at Republican insistence now, the practice of adjourning without recessing began in 2007 when Senate Democrats sought to prevent President Bush from making recess appointments.  According to The Hill, an Obama Administration Justice Department official previously said a recess must be at least three days and a CRS report reported that in the past thirty years no recess appointment has been made during a recess of fewer than ten days.  As the CRS report also notes, thus far President Obama has made recess appointments at a significantly slower rate than either of his two immediate predecessors.

UPDATE: From the LA Times:

While the Constitution gives the president the authority to fill executive branch vacancies when the Senate is in recess, a Justice Department opinion in 1993 implied that a recess of more than three days was needed before the president could exercise the power, according to the nonpartisan Congressional Research Service. No such appointments have been made during recesses of fewer than 10 days over the last 20 years, the service said in a December report.

But there is precedent for appointments made during recesses of fewer than three days — President Theodore Roosevelt made more than 160 recess appointments during a Senate break of less than a day in 1903.

SECOND UPDATE: I just noticed John Elwood beat me to it. As one would expect, his post is more informative and erudite than mine (and, importantly, explains why President Obama may have authority to make the appointment despite the Senate’s pro forma sessions).

THIRD UPDATE: It’s official. Here’s a statement from the White House, The Hill on the GOP response, and commentary from WonkBlog.

It is being reported that President Obama intends to recess appoint Richard Cordray to be the first Director of the Consumer Financial Protection Bureau despite the fact that the Senate has been conducting pro forma sessions for the precise purpose of preventing him from making recess appointments.  Under this procedure, the Senate “gavels in” briefly every three days, calls the house to order, and ordinarily gavels right back out without conducting any business.   The procedure commonly takes less than 30 seconds.  A couple of representative pro forma sessions can be viewed here and here.  The procedure was first used for the purpose of trying to prevent the President from using his recess appointment authority late in President George W. Bush’s second term, and has been used heavily since. 

In October 2010, my former boss at DOJ’s Office of Legal Counsel, Steve Bradbury, and I wrote this op-ed arguing that such pro forma sessions at which no business is conducted do not interrupt a recess of the Senate within the meaning of the Recess Appointments Clause, and thus do not interfere with the President’s recess appointment authority.  I recognize that this is a novel and difficult question of constitutional law, with very few relevant judicial precedents, and there are arguments for both positions. Here is an outline of the basic argument why such pro forma sessions do not interrupt a recess of the Senate.

In addition to the power to make appointments with the advice and consent of the Senate, the President has an auxiliary power under the Recess Appointments Clause “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 few discussions during the ratification debates to broach the subject (during which people argued both for and against such a power) tended to focus on how, absent such a power, the Senate would have to be continually in session to advise the President on the appointment of officers. That was also how Joseph Story framed the issue in his Commentaries on the Constitution: either “the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have the opportunity to act on the subject.”

Both the Senate and the Executive Branch traditionally have given the Recess Appointments Clause a practical construction that focuses on the Senate’s ability to provide advice and consent. The earliest opinion of the Attorney General on the issue (which first took the position, which also has been controversial, that the President can make appointments not only to fill vacancies that arise during the recess, but also which happen to continue to exist during such a recess) focused on the Senate’s ability to provide advice and consent. Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. 631, 633 (1823) (“all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President”).

One of the most important documents on the scope of the Recess Appointments Clause is the report the Senate Judiciary Committee issued on the question in the wake of President Theodore Roosevelt’s decision to make recess appointments during a truly brief gap between two sessions of Congress. That report likewise advocated a practical interpretation that focused on the ability of the Senate to perform the advise and consent function.

It was evidently intended by the framers of the Constitution that [“recess”] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of 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 cannot receive communications from the President or participate as a body in making appointments.

S. Rep. No. 58–4389, at 2 (1905).

The argument is that the sort of pro forma sessions that are now going on don’t give the Senate the opportunity to conduct any business. Indeed, the resolution that preceded this recess specifies that no business will be conducted at these sessions.

Madam President, I ask unanimous consent that when the Senate completes its business today, it adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Tuesday, December 20, at 11 a.m.; Friday, December 23, at 9:30 a.m.; Tuesday, December 27, at 12 p.m.; Friday, December 30, at 11 a.m.; and that the second session of the 112th Congress convene on Tuesday, January 3, at 12 p.m. for a pro forma session only, with no business conducted, and that following the pro forma session the Senate adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Friday, January 6, at 11 a.m.; Tuesday, January 10, at 11 a.m.; Friday, January 13, at 12 p.m.; Tuesday, January 17, at 10:15 a.m.; Friday, January 20, at 2 p.m.; and that the Senate adjourn on Friday, January 20, until 2 p.m. on Monday, January 23; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders be reserved for their use later in the day; further, that following any leader remarks the Senate be in a period of morning business until 4 p.m., with Senators permitted to speak therein for up to 10 minutes each, and that following morning business, the Senate proceed to executive session under the previous order.

Concluding that such pro forma sessions (which by design are not for conducting business) interrupt the recess of the Senate and thus prevent recess appointments would present a risk to separation of powers because it would allow the Senate unilaterally to frustrate the President’s exercise of a power granted him by the Constitution, which the Framers considered to be important to keep the government functioning by filling offices.  Cf. McAlpin v. Dana, No. 82–582, slip op. at 14 (D.D.C. Oct. 5, 1982) (“[T]here is no reason to believe that the President’s recess appointment power is less important than the Senate’s power to subject nominees to the confirmation process.”). 

Congress has its share of legitimate ways to curb the President’s use of recess appointments. For starters, the Pay Act imposes limits on the ability to pay officers who have been recess appointed; the Senate may “punish” the President by moving even slower on nominations; Congress may even reduce or eliminate funding for particular programs or agencies. I suspect that some of that will happen in the wake of this recess appointment. These are the sort of ways that the branches have traditionally wrangled over the use of recess appointments.

A caveat:  Although no business was supposed to be conducted at any of these pro forma sessions, I understand that on December 23, Harry Reid actually did some work at one of them—he asked unanimous consent that the House-passed payroll tax holiday extension be considered read three times and made arrangements for a Conference Committee. But I believe the remainder of the sessions have had no business conducted at them, supporting an argument that the recess was not interrupted during that time.

The decision to make Richard Cordray the first such appointment strikes me as a “high roller” move.  Given the role of the CFPB, it seems likely that Cordray will necessarily take many actions that will give rise to justiciable challenges–i.e., actions that will give people the opportunity to challenge in court the legality of his appointment. Given the importance of historical practice in defining the relationship between the Executive Branch and the Senate in this area, it arguably would have been a safer move to make several recess appointments of officers who would be unlikely to take actions justiciable by private parties, to establish the precedent. But for law nerds like me, the Cordray appointment means there may actually be a court ruling on this interesting (and under-explored) subject.

I expect that OLC will be releasing an opinion explaining the legal rationale supporting the appointment soon. Watch this space for more.

UPDATE: Ordinarily, when Congress goes out for recess, the two houses pass a concurrent resolution.  They have to do that because Article I, Section 5, Clause 4 says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .”  I hear that the House of Representatives didn’t consent to a recess, and in poking around the Congressional Record, I haven’t located any concurrent resolution for this recess.  If you have definitive information one way or the other, let me know by email. 

The President today announced that he would recess appoint James M. Cole as Deputy Attorney General.  His nomination has been pending since May–reportedly the longest delay in confirming a DAG nominee in 30 years, but in the context of nominations in the last decade or so (some of which have dragged on for years), an all-too-typical delay.  A synopsis of the controversy over the Cole nomination here. The President also recess appointed ambassadors to Azerbaijan, the Czech Republic, Turkey, and Syria (the last was controversial because some complained it was rewarding Syria’s bad behavior by sending an ambassador; there has been no ambassador to Syria since 2005).  My favorite of the current crop is the recess appointment of William Boarman to be Public Printer of the United States, mainly because you’d think you could get a printer confirmed without a kerfuffle, but no. Get the skinny here.  Eventually the national security implications of not having a confirmed Public Printer are grave enough that it forces the President’s hand.  The appointments will last until the end of the next session of Congress. 

The Senate rose sine die on December 22, so these are intersession recess appointments. Whether they are intersession or intrasession appointments doesn’t make a material difference here, because the Senate is out for two weeks until January 5, an amount of time that traditionally has been considered (by the Executive Branch, at least) sufficient even to make intrasession recess appointments. The main significance of the inter/intra distinction is that once the Senate rises sine die there’s no question that the Senate is in recess and so everyone isn’t focused on whether the duration of Congress’s adjournment is sufficient that it is a “recess” for purposes of the Recess Appointments Clause. That and the fact that when Congress has gone home for good there is no real mechanism for conducting “pro forma sessions,” which are thought by some to prevent the President from making recess appointments.  My and Steve Bradbury’s contrary view on pro forma sessions here.

Other VC coverage of President Obama’s recess appointments here and here.

When I was in the Office of the Solicitor General, I was the Assistant who worked on the (many) briefs in opposition to cert petitions challenging the recess appointments of Judges William Pryor and Charles Pickering in 2004. 

In connection with those opps, Bristow Fellow Ileana Ciobanu and I compiled this list using DOJ and Federal Judicial Center records of all the judges who had been given recess appointments to Article III courts.  That list, which was appended to the government’s brief in oppostion in United States v. Franklin, 04–5858, is more complete and accurate than the one appended to the government’s earlier brief in opposition in United States v. Miller, 04–38, but because Franklin was an in forma pauperis case, and the OSG website doesn’t host IFP briefs, it previously wasn’t available on the Internet.  This is the most comprehensive list of which I am aware, so I thought it’d be worthwhile to host it (and link it) here on the Conspiracy.  (If you have links to any briefs filed on the other side of the issue, email them to me or link them in the comment thread for one-stop shopping.)

Without endorsing the practice–I hope that I have written my last words on the merits of this subject–it’s interesting to see the prominent jurists who received recess appointments over the years, including Thurgood Marshall (to the Second Circuit), Skelly Wright (to the E.D. La.), Leon Higginbotham (to the E.D. Pa.), Spottswood Robinson, Griffin Bell, David Bazelon, Augustus Hand, Justice Brennan, and Elmer J. Schnackenberg.  OK, I had never heard of Schnackenberg either.