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Posted at 05:30 PM ET, 01/06/2012

Obama picked right fight over recess appointments


In reaction to President Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB), I noted that the constitutional questions are many and needed to be answered. But after reading The Post editorial and op-eds for and against the action, I’m even more convinced the president is on solid legal ground.

“[N]ever before has a president purported to make a ‘recess’ appointment when the Senate is demonstrably not in recess,” declare Edwin Meese and Todd Gaziano in an op-ed for The Post today. “That is a constitutional abuse of a high order.” Cue the dramatic music for this overly dramatic reaction. You’ll understand my snark once you know the definition of “recess” and why the Democratic-controlled Senate is forced to hold these irksome pro forma sessions in the first place.

As today’s Post editorial argues, the president’s recess-appointment power “should not be undermined — indeed nullified — through the use of ploys. “To argue that phantom pro forma sessions render the Senate ‘open for business’ is to defy common sense,” the editorial notes. “The same holds true for the fiction created when lawmakers head out of town but decline to formally acknowledge an adjournment.” I’ll come back to this “formally acknowledge” bit in a moment.

Harvard constitutional law professor Laurence Tribe argues in The New York Times that these “pro forma” sessions are “sham sessions, manifestly serving only to circumvent the recess appointment safety valve.....” He also slams them as “transparently obstructionist.” Tribe and Ezra Klein point to an even bigger issue involved here. Without a permanent chief, the CFPB legally cannot function, nor could the National Labor Relations Board without three new members needed for a quorum to carry out its duties.

In an email this morning, Tribe forcefully pushed back against Meese’s “the Senate is still in session” argument by pointing out that the former attorney general would violate the Constitution in his questionable effort to honor it.

It would make a mockery of the recess appointment power specifically provided by Article II, Section 2, to say, as Mr. Meese does, that Congress could contrive to strip the President of that appointment power by itself violating the Constitution!
In this instance, the obvious and undeniable purpose of the Senate’s decision to go into that six-week recess – following its refusal to give a binding up-or-down vote to any nominee to head an agency (the CFPB) whose statutory powers remain largely dormant unless and until a Director is appointed – was to strip that agency of much of its lawful authority, thereby preventing the President from carrying out his duties under Article II, Section 3, to execute duly enacted laws. The President’s recess appointments merely prevented the Senate from achieving that unlawful purpose.

Those who buy the Meese-Gaziano definition of “recess” should take note of an an op-ed for The Post in 2010 by two former justice department officials under President George W. Bush who urged Obama to call the Senate’s bluff on recess appointments. Specifically, they highlighted a 1905 Senate Judiciary Committee report on the meaning of the word “recess.”

In a 1905 report that the Senate still considers authoritative, the Senate Judiciary Committee recognized that a “Recess of the Senate” occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot “participate as a body in making appointments.” The committee cautioned that a “recess” means “something actual, not something fictitious.” The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”
The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president’s nominations. That means the Senate remains in “recess” for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.

Now, let me come back to that “formally acknowledged” bit in the editorial. This alludes to the Meese-Gaziano crutch that because the House did not formally consent to the Senate being in recess that the chamber is, thus, not in recess. This is yet more proof that Washington is a looking-glass universe and gets to a very good question put to me by a reader yesterday.

Do you know why, exactly, the senate is running pro-forma sessions when it is controlled by democrats and a democratic president is running the show? Your column suggests the pro forma sessions are driven by republicans. How can they do that?

As Meese and Gaziano point out, “Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.”

Adam Jentleson, communications director to Senate Majority Leader Harry Reid (D-Nev.), acknowledges this obvious point. But, “Republicans refuse to give consent,” he told me in an email. “Voting would be pointless because even though the resolution would pass the Senate, the House would have to approve it, and they’ve stated they will not. Hence, these pro forma sessions.”

Hence, a congressional approval rating so low that Paris Hilton is almost twice as popular and the IRS is almost five times as popular. Perhaps when it hits zero Congress will realize that perfecting the dark arts of partisan gridlock was not what they were sent to Washington to accomplish.

By  |  05:30 PM ET, 01/06/2012

 
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