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Post Partisan
Posted at 02:41 PM ET, 10/11/2012

The case for Obama's recess appointments

George Will accuses Barack Obama today of Humpty Dumpty thinking with regard to recess appointments. He’s right that some of that is going around — but he’s pointing in the wrong direction.

Will’s column took up the recess appointments Obama made in January during a highly unusual situation, in which the Senate was unable to take a normal recess because the House refused to take a normal recess — using the trick (invented by Senate Democrats when they had the majority in 2007 and wanted to prevent George W. Bush from making recess appointments) of pro forma sessions and the constitutional rule that one house of Congress cannot go on a recess if the other doesn’t.

The basic facts about what happened are undisputed: The Senate wanted a normal recess; the House prevented it; the president made a recess appointment anyway. The question is whether this stretch of time should count as a “recess” for the purpose of allowing the president to make appointments. The problem is that the Constitution is silent about what counts as a recess.

First, Will tosses a couple of red herrings at us. It is true that recess appointments were once made between sessions of Congress rather than within sessions, and also true that there was once a controversy over whether the constitutional clause applied to only those vacancies that occurred while the Senate was in recess. However, both of these questions were settled long ago and have no bearing at all on the current matter.

The question that remains is, what counts as an in-session recess of the Senate?

It’s hard to see any clear answer to that. (The Congressional Research Service has released a document on the subject; I have also written a primer as well as another post about it.)

The president’s argument is basically that since the Constitution lacks a definition, there’s no reason to accept the technical trick of pro forma sessions. The response is that without some limit, the president could just make appointments every time the Senate (while in session) recesses for a night or a weekend, which would make the constitutional limitation meaningless, and we shouldn’t read law in such a way that it becomes meaningless.

My feeling is, this is, to some extent, government-by-loophole — but the problem is caused by a double shot of government-by-loophole, so it’s hard to blame the president for retaliating in kind.

First of all, the idea that a minority of the Senate would decide to stop all nominations for certain positions does not fit well into the body’s normal advise-and-consent responsibilities, nor was it built into Senate rules by design. So that’s one loophole.

The second is the ability of the House to prevent the Senate from recessing and therefore the president from using his constitutional powers. Given that the Constitution gives no role at all to the House in the confirmation process, this particular loophole violates the spirit of constitutional governance and, in my view, clearly justifies presidential retaliation.

Will is correct that Mitch McConnell and most Senate Republicans claim that what happened in January was not a recess. But McConnell is the Senate minority leader, not the majority leader! If Harry Reid and at least 50 other Democrats thought it was a recess — and the president agreed — then it’s hard to buy the idea that we should care too much what McConnell thinks.

All that said: This is clearly a new situation; we’ve never had the House attempt to prevent the Senate from taking a recess, which the majority of the Senate wanted, in order to block recess appointments. While I think the bulk of the arguments favor the president (and the Senate majority) in this episode, I do think it’s different enough that reasonable people may disagree.

What is unreasonable, however, is Will’s insistence that Barack Obama’s interpretation of this poorly defined constitutional clause means that he “simply ignored” it, or that Obama’s interpretation means that he will only “selectively” defend the Constitution. Will knows better than that. And if anyone is playing Humpty Dumpty with the Constitution, it’s House Republicans.

By  |  02:41 PM ET, 10/11/2012

 
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