Call the Senate's bluff on recess appointments

By Steven G. Bradbury and John P. Elwood
Friday, October 15, 2010

At 11:30 a.m. on Friday, Oct. 1, 2010, Sen. Ben Cardin of Maryland called an otherwise empty Senate chamber to order. He asked the clerk to read a letter from Sen. Daniel Inouye, the president pro tempore of the Senate, appointing Cardin acting president. Then, as presiding officer, Cardin abruptly declared the Senate in recess until 11 a.m. on Tuesday, Oct. 5. This "pro forma session" lasted precisely 28 seconds.

The same procedure will be used 13 more times, at least twice a week for six weeks, until the 111th Congress reconvenes for real after the November elections. The unanimous-consent order setting up this odd procedure stipulates that the Senate shall "meet in pro forma session only with no business conducted."

What's the point of these phony "pro forma sessions"? They serve but one purpose: to prevent the president from exercising his constitutional authority to make recess appointments.

A novelty first seen during the waning months of the Bush administration, the pro forma session threatens to become a permanent roadblock in the already dysfunctional appointments process.

In return for agreeing to confirm 54 of President Obama's nominees before the election break, Minority Leader Mitch McConnell (R-Ky.) reportedly got Majority Leader Harry Reid (D-Nev.) to keep the Senate in pro forma sessions so the president could not make a recess appointment of any other nominees, including Jack Lew, the president's pick for director of the Office of Management and Budget.

In addition to the power to make appointments with the advice and consent of the Senate, the president has an auxiliary power under the Constitution "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." This power to make temporary appointments helps keep a balance between the political branches in our system of divided powers.

The president can use this power to fill a vacancy during any recess between sessions of Congress as well as recesses during sessions of Congress, if they are of substantial length. The creators of the "pro forma sessions" believe that they break substantial recesses, such as the present one of six weeks, into recesses too short for the president to make such appointments.

Senators never like recess appointments, and they have plenty of leverage to protect the Senate's advice and consent role. Senators can block the confirmations of other nominees, they can stall the president's legislative agenda and they can refuse to approve the president's budget requests. They can also call the president to task in the political arena. And Congress has prohibited paying a salary to a recess appointee if the president declines to put forward any nominee for the office.

But the Senate cannot constitutionally thwart the president's recess appointment power through pro forma sessions.

Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not "in session for the appointment of officers."

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.

The president should consider calling the Senate's bluff by exercising his recess appointment power to challenge the use of pro forma sessions. If the Senate persists, then the federal courts may need to resolve the validity of the Senate's gambit.

The alternative will likely be greater gridlock in Washington. This practice will inevitably become the standard operating procedure, and the recess appointment power could become a virtual dead letter -- undermining what the Founders viewed as an essential tool for the effective functioning of our government.

The writers are Washington attorneys. From 2005 to 2009, Bradbury headed the Office of Legal Counsel in the Justice Department, and Elwood served as deputy assistant attorney general. Although Bradbury was nominated as assistant attorney general in 2005, his nomination was never voted on by the full Senate. Individual senators put holds on the nomination, and Senate leaders instituted pro forma sessions to prevent a recess appointment.

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