The recess appointment of Richard Cordray has produced what appears to be the intended political response. The White House wanted to highlight the GOP blocking not just the head of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board. Over the last few days I have been called by various media outfits for a supporting view of the recess appointment of Cordray. However, I do not support the appointments and believe they raise serious constitutional problems.
First let me begin by saying that the blocking of Cordray is wrong and itself raises questions over the dysfunctional effect of the filibuster power. Moreover, the Senate has continued to use its own abusive unchecked powers like blues-slipping, which I have long criticized with recess appointments.
The Cordray controversy, however, combines the controversial use of filibustering with the controversial practice of recess appointments — a perfect storm of dysfunctional actions by both parties. I was highly critical of recess appointments during the Bush administration. These appointments, particularly of judges, circumvents the constitutional process and represents an unchecked power with limited textual support in the constitution. This case in particular is a clear effort to deny the Senate its authority to share the power of appointment of high-ranking officials. It has nothing to do with the merits. I like Cordray, but circumventing the Constitution is no solution to a political stalemate.
Recess appointments do have support in the Constitution. Article II, Section 2 of the U.S. Constitution states:
The President shall have Power 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.
The power, however, is ill-defined and there has long been a debate over its scope. When this clause was first put into effect, it was common for recesses to last six or even nine months at a time. That made such appointments a practice necessity. In modern times, it has been used openly to circumvent opposition in Congress — something that was not the intention of the Framers in my view. Bush uses the power to appoint John Bolton — circumventing well-reasoned objections to his appointment to the United Nations. However, Democrats have to stop citing the Republicans as precedent when they vehemently objected to the same practices. If it was wrong then, it is wrong now. Indeed, the brief length of this “recess” makes this a particularly wrong-headed move.
The long practice of judicial appointments is particularly obnoxious in my view. In 2000, Bill Clinton gave Roger L. Gregory a recess appointment to the Fourth Circuit. (He was later renominated Gregory and secured confirmation). In 2004, Bush recess appointed Charles W. Pickering to the U.S. Court of Appeals for the Fifth Circuit and William H. Pryor to the Eleventh Circuit Court of Appeals. I have long argued that the Senate should adopt a rule that it would vote against the later confirmation of any judge given such a recess appointment on principle. Citizens are entitled to the guarantee of a federal judge confirmed by the Senate and given life tenure.
The dangers of such appointments is made evident by George Washington’s appointment of South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. I have previously written about Rutledge — a man who was demonstrably deranged, later rejected by the Senate, and attempted suicide.
The Justice’s Office of Legal Counsel in 1989 indicated that presidents cannot make recess appointments during Senate breaks of less than three days — a long-standing guiding principle. For that reason, Congress decided not to break for more than three days this year — a decision clearly within the power of members. In this case, the House refused to consent to the Senate adjourning for more than three days, which is its perogative under the Constitution. Neither house can adjourn without the consent of the other under Article I, Section 5.
Once again, I believe Democrats are blinded by the immediate political controversy and not considering the long-term implications of such appointments. Previously, some of these same members (including Senate Majority Leader Harry Reid (D-Nev.)) used precisely this power to block recess appointments by President Bush.
While this pro forma session may seem like dirty pool, it is clearly constitutional. Moreover, it was not entirely pro forma since three days after going into the session, Congress passed the President’s demand for a two-month payroll tax holiday.
Once again, I am generally opposed to modern recess appointments designed to circumvent political opposition in Congress. However, this is different. If this is a valid recess for such appointments, a president could circumvent the process with the slightest interruption of sessions. Is that the precedent Democrats want to establish. President Obama has already surpassed Richard Nixon in the development of an imperial presidency of unchecked executive powers.
The Framers laid out a detailed process for the appointment and confirmation of officials as a shared power of both the legislative and executive branches. It has rarely been a smooth relationship — shared power often produce tensions whether between siblings in a family or sister branches in a tripartite government. The framers understood and expected such tensions. They used the rivaling interests of the branches to serve as checks and balances. The Administration does not like the fact that the Senate is withholding its consent. However, that is like complaining about the weather. You can rage at the rain or find shelter in our system through compromise.
There is a good chance that a federal court would again avoid such a constitutional challenge by saying that it is a matter for the political branches to work out. Courts have increasingly avoided their responsibility to answer such questions by deferring to the political process when this practice undermines the political process established by the Framers. What is clear is that the President has a recess appointment power and the question is whether there is truly an implied period after which this power may be constitutionally used. That is a difficult question given the ambiguity of the text. However, it is not a close question in terms of the dysfunctional role played by this practice, in my view. It is not something that should be applauded merely because it puts the opposing party in a tough position or fits with a campaign theme.
It seems that this is a good fight to have politically for the White House and certainly it highlights a wedge issue with the GOP. However, it is not good for the Constitution or, in the long run, the country.
Senator Edward Kennedy’s amicus brief to the 11th circuit objecting to the 2004 recess appointment by Bush of Judge William Pryor Jr.
What is being surprisingly overlooked with regard to the constitutionality of a recess appointment is the nature of the “vacancy”.
From Art II Sec 2 Clause 3
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate,” … [emphasis added]
A “vacancy” is an “event” that happens at some point in time. The position constituting the vacancy becomes unfilled for some reason (death, resignation, forced termination, incapacity, etc.). Vacancies which do NOT happen during the recess of the Senate are therefore NOT eligible for recess appointments. This makes perfect sense, since such vacancies have already had (and continue to have) the opportunity for senatorial consideration. While assembled (i.e. not in recess), the Senate may have rejected one or more nominees, may have decided not to consider one or more nominees, or may not have had any nominees made available to them for consideration. If the Senate fails to confirm a nominee and thus fill such a vacancy, it is nevertheless a dispositive decision made on the part of the Senate and its decision must be honored by the Executive.
To make this point even clearer, consider the following clause in juxtaposition to the former:
‘The President shall have Power to fill up all Vacancies during the Recess of the Senate’
This clause reflects the meaning of the former as it is now interpreted — yet they are not the same, nor do they have the same meaning.
The purpose of the recess appointment was to avoid having the government hamstrung by a vacancy that occurred during a recess and to avoid having to reconvene the Senate merely for the purpose of addressing such a vacancy. With regard to the appointment of Richard Cordray, that particular vacancy “happened” either when the bill was signed into law or when the CFPB officially began operation last July 21. The Executive announced its nomination of Cordray on July 17, and since that time the Executive has had opportunity to make other nominations, and the Senate has had opportunity to advise and consent, yet they have not as yet chosen to provide that consent. It is not for the Executive to decide that it may now make this appointment because it believes that such a condition is now inconveniencing the government, because the Executive has no such constitutional power. The previous clause in Art II Sec 2 shows that the central tenet here is that the President nominates, and the Senate consents. Circumvention is unconstitutional.
It is also instructive to consider what Hamilton said about this subject in Federalist #67:
“…The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”… [caps are Hamilton’s]
While the debate over this issue is now revolving around the intricasies of what constitutes a “recess”, the more important issue is what constitutes a “vacancy”. The upshot of this line of reasoning is that there have probably been no legitimate recess appointments made, by either party, since the 19th century, when Congress actually recessed for extended periods. Perhaps that is why neither side is making mention of this point — because in recognizing this limitation, the power of the Executive is diminished from what has customarily been accepted for it in recent times. But such an attitude does not make such an appointment constitutional.
“Adhering to the highest law in the land cannot be deemed optional simply by categorizing it as political”
What a great line. Shall we start a list!
Where does the puck stop? Because the potentially justiciable issue seems to favor the repub obstructionists, it’s a go! Smells a little political to me. Surprise!
Bob, Esq.:
I agree that what’s happening is destructive of constitutional government, but I don’t know what the remedy is. Senators can’t be impeached. I don’t think that mandamus would lie to compel Congress to implement a statute or to fund it, although that might not be a bad idea. Perhaps this reveals a structural flaw in the Constitution, or perhaps it is intentional. Perhaps the Founders believed that these logjams are political in nature and should only be resolved politically.
Mike Appleton: “This dispute virtually begs for application of the in pari delicto doctrine.”
Mike,
Isn’t that Latin for everyone’s guilty therefore no one’s accountable? Seems to me this problem is more a result of a third party, i.e. the electorate, remaining ignorant by design about a certain corpus delecti, i.e. the constitution being used as a urinal puck.
Seriously Mike, I agree with JT; this shit has to stop. While it may be non-justiciable as a political question, the blatant disregard for constitution screams for a forum wherein the electorate can seek an immediate remedy. Adhering to the highest law in the land cannot be deemed optional simply by categorizing it as political; that contradicts the very intent and purpose of the entire design of the document.
I don’t know what needs to be done, but this attitude of ‘well, it’s not violating the constitution when our side does it’ is unsustainable.
Blouise:
I believe the word “devolved” would probably be more accurate. The legislative branch appears to be in a state of near paralysis. Republicans seem so obsessed with Mitch McConnell’s “one term” agenda that their focus has been to filibuster all legislative proposals by the Administration and to refuse to implement any laws that get enacted over their opposition. They then criticize the President for not accomplishing anything. I would rather deal with my three-year old grandson. When he has the occasional temper tantrum, I get down on the floor and replicate his fussing. He is laughing within a few minutes and we’re on to other matters. I doubt that that procedure would work to end McConnell’s perpetual pout.
“If he does not appoint Cordray then a minority is controlling the government.” (Rafflaw)
Has something to do with short term vs long term scale; or shortish/longish, too.
————————–
From a practical standpoint, a good argument can be made to break the obstructionist filibuster. Of course the political is woven throughout as well. The ‘supermajority’ nonsense has gotten so far out of hand to render the provision almost laughable when one considers it’s purpose to protect minorities in extraordinary circumstances.
Let’s just hypothesize that if we had a truly dictatorial majority with a complicit dictatorial executive, how long do you think the attempts of an oppressed minority to thwart the dictatorial impulses by filibuster would last? How else do you call out an abuse of this rule? I know: every four years, blah, blah, blah.
—————————–
I hope the Supreme Court stays out of it, if for no other reason than to salvage a bit of dignity for it’s increasingly tarnished reputation as being political. I know, over the long term, the Court is an imperfect reflection of the politics of the nations. But in the short term, in ’emergency’ causes, it can look positively craven (Bush v Gore). More politics on top of the Exec/Congressional impasse, on top of the supermajority impasse . . . Stay out.
————————————
In the absence of a revolution, or an outbreak of common sense, what’s to be done?
Smoke and mirrors. Section 1066 of the law that created the bureau says some of, it not most of the bureau’s new powers will be held by the secretary of the Treasury “until the Director of the Bureau is confirmed by the Senate.”
“until the Director of the Bureau is confirmed by the Senate.”
It’s like the 30’s. The Mafia is in charge of the government and two crime families are fighting to take control. We, the governed, just get blown away in the cross-fire.
I mean seriously do you think anyone cares if this is “legal” or not? Such niceties are reserved for the masses like us. The past several years have shown beyond any reasonable doubt that laws do not apply to these people.
Like Darth Sidious said “I will MAKE it legal”
Mike Appleton,
Has the government thus evolved to such a degree of impotency that any action it takes must be illegal in order to succeed?
“Were I a judge, my ruling would be a pox on both your houses.” -Mike Appleton
I’m persuaded.
This case raises a number of interesting issues, both political and legal. However, I seriously doubt that litigation will resolve the dispute because I cannot foresee the Supreme Court entertaining the case. Its decision would produce partisan rancor and further erode its already damaged public reputation. Furthermore, the political establishment does not deserve a judicial resolution. This dispute virtually begs for application of the in pari delicto doctrine. Republicans are refusing to implement a duly enacted statute and using parliamentary procedure to create a fiction. The President is deliberately ignoring Senate rules to thwart what is in effect a congressional veto attempt and daring a response. Were I a judge, my ruling would be a pox on both your houses.
I understand your argument Professor, but the precedent for recess appointments goes back decades and I don’t think it will stop. I don’t even think the Roberts court will stop it. Secondly, I don’t think the Administration had any choice. If the Republicans can stop all work in the Senate, then he has to appoint people to do the work. Mike S. put it well when he described what Obama is up against. If he does not appoint Cordray then a minority is controlling the government. That is not constitutional, is it? When the Senate can prevent a vote on a candidate who has a majority of Senators in favor of his/her candidacy, then something has to be done to break that logjam. The Judiciary is in a crisis with the vacancy problem and it has been caused by the Republican’s intentional attempts to keep Obama nominees off the bench. At some point, you have to fight fire with fire. The Founding Fathers did not anticipate that a small group of Senators would stop all serious work unless it helps them politically.
Blouise,
Agreed.
Good info from Mike Spindell’s post at 2:06 pm … there is always more than meets the glancing eye.
The people should have a say in who is being appointed and the law was set up to account for long stretches of time when congress would not be in session, not for a 2 week vacation or recess.
the law should be amended if presidents cannot submit to original intent.
There are seven states which have a single U.S. Representative. The following is a comparison of the vote received by the at large Representative and the Senator from each state in the 2008 election. The name of the state will be given, then the number of votes for the Representative followed by those for the Senator. Three states did not elect Senators in 2008 (denoted by NA), and one state elected two Senators – one for a full term and one for an unexpired term (listed in that order). Their vote counts will be given in that order.
Alaska: 158,939 v. 151,767
Delaware: 235,437 v. NA
Montana: 308,470 v. 348,289
N. Dakota: 168,601 v. NA
S. Dakota: 256,041 v. 237,889
Vermont: 248,203 v. NA
Wyoming: 131,244 v. 189,046 & 183,063
The Representatives elected in Alaska and S. Dakota received more votes than did their respective Senators. Excluding the Representative from Wyoming, every at large Representative out polled the Alaska Senator. Three at large Representatives out polled every small state Senator except for Montana’s.
More importantly, 20 other representatives from around the country out polled every small state Senator except Wyoming’s. Yet none of these Representatives can single handedly kill legislation or nominations by placing a hold on it, but these small state Senators can. This hardly comports with the one man, one vote concept.
The mere fact that these small states have two Senators should vitiate the need of Senatorial holds or filibusters. Every vote in the Senate, except as otherwise provided by the express terms of the Constitution, should be by simple majority.
JN — “The power [to make recess appointments], however, is ill-defined and there has long been a debate over its scope. When this clause was first put into effect, it was common for recesses to last six or even nine months at a time. That made such appointments a practic[al] necessity. In modern times, it has been used openly to circumvent opposition in Congress — something that was not the intention of the Framers in my view. Bush uses the power to appoint John Bolton — circumventing well-reasoned objections to his appointment to the United Nations.”
Ay, there’s the rub: “when this clause was first put into effect” v. “in modern times.”
The Senate can avoid recess appointments in modern times by doing its damn job — vote the nomination down. But no, the nominee may actually be approved! But only if there is no blue-slip and the nomination first attains a 60 member cloture vote. And staying in session — pro forma, any way — to avoid recess appointments. In modern times, this is BS
The President has his own job to perform and he is entitled to have his own appointees at helm in the implementation of the laws of the United States. The dilatory tactics of the Senate, IMHO, are unconstitutional.
Every single vote in the Congress should be by majority vote except where the Constitution expressly provides other wise. Period. The Senate’s failure to comply with the plain terms of the Constitution, in modern times, distorts alarming expands those protections of minority views when first put into effect.
See following . . .
I am unclear how the Republicans can keep the Senate in session without a majority. Also, for what it is worth, I recall news reports showing that Sen. Webb used to preside over an otherwise empty chamber for a few minutes each day to prevent Pres. Bush from making recess appointments.