Hours before their campaign recess, Senate leaders struck a historically dysfunctional deal to confirm 54 long-blocked Obama nominees. In exchange for not obstructing, Republicans demanded Senate scheduling of pro forma sessions every three days during recess. The faux meetings are meant to dissuade President Obama from using recess appointments during the six-week break.
The deal allowed other pending Obama nominees to remain in the Senate’s confirmation queue rather than be formally sent back to the White House to restart their appointment processes.
Democrats used the same pro forma tactic to deter President George W. Bush from signing recess commissions beginning in late 2007. Fooled by the ploy, Bush surrendered recess appointment authority for the rest of his presidency.
Now, as then, the Senate’s faux sessions are little more than a game of separation-of-powers chicken.
UNDER WHAT LAW?
News reports of the confirmation deal uniformly misstated that, “under the law,” the president can recess-appoint only if the Senate is adjourned for more than three consecutive days. Press Secretary Robert Gibbs failed to correct the record; rather, he too stated that the pro forma sessions “might make recess appointments difficult to impossible.”
But there is no minimum recess required under any law. The three-day minimum recess is fiction — as fake as are the Senate faux sessions. Better to begin with nonfiction — the Constitution.
In 2004, the U.S. Court of Appeals for the 11th Circuit ruled: “The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” In Evans v. Stephens, the 11th Circuit, following prior 9th and 2d circuit rulings, broadly affirmed the executive’s unilateral recess commissioning authority during short intersession and intrasession breaks.
Even the Senate’s own Congressional Research Service reports: “The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment.”
So what is the origin of the three-day recess myth? The research service chronicles how “[o]ver the last century, as shorter recesses have become more commonplace, the Department of Justice has offered differing views on this issue. Most recently, in 1993, a Justice Department brief implied that the President may make a recess appointment during a recess of more than three days.”
The 1993 brief’s three-day minimum was based, however, on a faulty analogy to Article I, Section 5, clause 4 — the adjournment-consent clause. The clause requires that each house of Congress obtain the other’s consent before it adjourns for more than three days. Misapplying the clause, the Justice Department brief is built on conjecture that any break of three days or less is de minimus not only for adjournment consent but, the brief implies, also for purposes of recess appointments.
The same clause also restricts either house from moving “to any other Place than in which the two Houses shall be sitting.” Clearly, the entire Article I provision is meant only as an internal comity restriction on the legislative branch. Congress should work together in time and place. It is not relevant to — or restricting of — the president’s Article II appointment authority.
As the Constitution’s text and various appellate courts have made clear: There is no minimum recess time required for a valid recess appointment.
A SIX-WEEK RECESS
The president’s constitutional appointment authority cannot be trumped, or even limited, by Senate scheduling shenanigans. In fact and law, the 111th Senate is now dispersed to the four corners for six campaign weeks. Gaveling open, and then gaveling closed, a half-minute meeting of an empty chamber is not a legitimate break in the recess. A Senate quorum could not be gathered; neither legislative nor executive business could be conducted. Constitutional law demands substance over form.
The faux sessions only further expose the broken institution and its failed, dysfunctional confirmation processes.
At bottom, recess appointments are a matter of presidential will. In 1903, Theodore Roosevelt set the standard when he recess-appointed 160 officials during a recess of less than one day.
As Barack Obama says, it is now time to “buck up.” It should be recess appointing time.
Victor Williams is a clinical assistant professor at Catholic University of America Columbus School of Law.