Washington Examiner reporter Phil Klein may have come up with the idea first, but now Sen. Jim DeMint (R-S.C.) and Sen. David Vitter (R-La.) are taking action. Klein reported earlier in May:
While the Constitution specifies no minimum number of days required for a recess appointment, a March 2010 Congressional Research Service report referenced a Clinton-era Justice Department brief suggesting it was more than three days.
The CRS report also noted that “(a)lthough President Theodore Roosevelt once made recess appointments during an intra-session recess of less than one day, the shortest recess during which appointments have been made over the past 20 years was 10 days.”
Klein posited that “House Republicans can use a tool provided by the Constitution in Article I, Section 5, which stipulates that, ‘Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days. ...’” So could the House put an end to the raft of recess appointments by the administration?
Yesterday, DeMint and Vitter, together with 18 other senators sent a letter to the speaker of the House that read, in part:
In 2007, the Senate limited its recesses to three days by employing pro-forma sessions in a successful attempt to thwart President Bush’s recess appointment powers. Article I, Section 5 of the United States Constitution states, “Neither House, during the Session of Congress, shall, without the consent of the other, adjourn for more than three days [.]”
Given President Obama’s indifference to the Senate’s constitutional authority, and the American people’s right to scrutinize his appointees through regular order of advise and consent, we urge you to refuse to pass any resolution to allow the Senate to recess or adjourn for more than three days for the remainder of the president’s term.
In a press release DeMint explained, “The Republican House has stopped President Obama’s ability to ram through his reckless liberal bills through Congress. Now the president is trying to stack agencies with liberal ideologues to ram through his agenda by regulation. Unelected and unconfirmed partisans at the NLRB, FCC, EPA and other agencies are destroying jobs and hurting our economy. Republicans need to fight back and stop recess appointment of controversial nominees that would never be confirmed in the proper process.”
I contacted DeMint’s spokesman. Pointing to the controversial AFL-CIO lawyer appointed to the NLRB, Craig Becker, Wesley Denton told me, “President Obama has time and time again used recess appointments to put radical nominees in powerful positions, and he’s even done it after Congress voted to reject his nominee.” His argument is simple: These people were unconfirmable precisely because of their radical agenda, which they are now jamming through. He said, “These appointments aren’t just keeping their seats warm, they are forcing through an extreme liberal agenda that could never pass Congress: taking over the Internet, attacking right-to-work states, and pushing through job-destroying regulations. We’re looking at every tool available to stop these controversial nominees from escaping public scrutiny in the confirmation process.”
A spokesman for House Speaker John Boehner (R-Ohio) had no comment yet on the idea. I can imagine that the House and Senate gurus are pouring over the rule books to see what is possible and what, if any, downsides there might be with this tactic. Needless to say (as the Democrats learned on “filibuster reform”), the unintended consequences of rule changes sometimes can be worse than the initial problem. (For example, does the House want to give Senate Majority Leader Harry Reid (D-Nev.) the power to object to House recesses?)
If nothing else, however, DeMint and Vitter are right to call attention to another White House overreach. The president has run up quite a record — recess appointments, signing statements and refusal to provide documentation to other bodies (whether to the Senate Homeland Security Committee on the Fort Hood shooting or to the U.S. Commission on Civil Rights investigating the dismissal of the New Black Panthers voter intimidation case). The White House has gone far beyond what the Bush team would ever dream of attempting. It’s about time Congress reasserted its constitutional prerogatives.