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.
resident smartass
pete … you are one wise human being
the senate was never meant to reflect the will of the people.
i doubt the founding fathers ever envisioned a black man as president either.
Blouise,
I don’t see it as a structural flaw in the Constitution. It is a structural flaw in the character of the men and women who are leading the once proud Republican Party. When decisions are made to benefit a party and not the country, that is where the structural flaw can be verified. Our Founding Fathers never imagined that Senators would sell their souls to corporations. At least not to this extent.
Or perhaps I should ask …Is this an indication of a structural flaw within the Constitution?
If it is, then it should be acknowledged and the process of correcting it begun.
Is this a symptom of a structural flaw within the Constitution?
Obstruct and obstruct versus Advise and Consent is perhaps unconstitutional, too.
“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.” (Bob Esq)
“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 A)
Straight out now … no flattery involved … when two such fine legal minds recognize the problem and have no ides what the solution is … gentlemen, we are in deep, deep shit!
Omega,
If the Senate can make its own rules that circumvent the will of the people, as we know they can, then the elected officials are not representing the people when they obstruct legitimate and important majority approved business.
“A Majority of each (House) shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day … Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days …” I don’t see much room in Article I Section 5 authorizing “pro-forma” sessions in the House whose sole purpose is to nullify an enumerated presidential power authorized in Article II Section 2.
Indeed the Constitution specifies a recess “of the Senate”, not of Congress as a whole when describing the recess appointment – and it does not use the term “adjourn” as in Article I Section 5. Which makes me wonder if a recess might actually exist whenever the Senate lacks a quorum for more than 3 days.
From Swarthmore Mom’s link at 12:00pm:
John Stewart: “Well played game of asshole’s poker.”
*****
Right.
Sorry Professor, 30 second sessions every three days may satisfy some technical aspect of an advisory position but what about the spirit and the intent of the actual Constitution? When one of the constitutional scholars on this site (and we have several) comes up with a quote from one of the founders that indicates that their original language applied to a F-U technical move by a dysfunctional Congress I will be persuaded to think differently. ‘Till then an advisory from the Justice Department (spits) just isn’t good enough. With all due respect.
(Not a fan of recess appointments either.)
Dredd brings up a good point later elaborated on by omega99 and Mike A. Is that language a settled matter of interpretation? It sure seems to have been ignored for decades, score’s of years even?
@rafflaw
Well we have an imperfect system. It is democratic in that the authority of the government is rooted in the people, but in practice, our republican government is not simply democratic, but far more complicated than simple majority rule. The Senate makes its own rules, as does the House, and they can change them at will. The current gridlock in government is undoubtedly reflective of the deep divide across the electorate.
Omega99,
I might agree with you if the Senate Republicans have not urned Democracy upside down by making every important vote one that needs 60 votes or put on a so-called secret hold. Is that the will of the people?
@Mike Appleton
Thanks for your reply. You make a valid point about some potential bad timing. I would only say that, should such extraordinary circumstances arise, and should a vacancy create a condition that, for instance, threatened the security of the nation, then under Art II Sec 3, the President would be able to convene the Senate in order to resolve the situation.
Where I would diverge from your opinion, is the matter of good faith on the part of the Senate. Since, the Legislature represents the “Will” of the people, there is no objective way to measure that good faith against any standard. Although the branches of government are separate, they are not actually equal in that the Legislature “must necessarily predominate” in a republican government. They make law, they appropriate money, they consent to appointments and treaties, they make the rules governing the military and the judiciary, they declare war, in short, they call [nearly] all the shots. The Executive functions to “Execute” the “Will” of the Legislature. And this is how it must be since the Legislature is closest to the people (by district and state). The Framers understood that the natural inclination of government would be to expand the powers of the Executive and senatorial consent of appointments is one such check against this. Undermining such checks opens a path toward tyranny.
was(n’t) that long after adoption.
Oops.
“Seriously Mike [A], 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.”
Bob,
You are 100% correct, but here’s the rub. The Republicans in this Congress have openly set out to be as obstructionist as they can be. This type of behavior wasn’t foreseen by our Founding Fathers, although it was that long after adoption that they were involved with much wrangling over Constitutional issues. What is to be done though in a situation like this where one side of the triumvirate is acting in clearly bad faith, by refusing to vote yea or nay on appointments? To take the high (Constitutionally correct) road is the proverbial bringing a knife to a gunfight. If the Republican Congressional obstruction continues, then we will have established that bullying is the proper political tactic in this country. At that point it is the “Constitution Be Damned” anyway.
The conundrum to me is that our Constitution while representing a leap forward in human affairs, is nevertheless a flawed document. As Oro Lee pointed out at 2:50 pm, our entire system of Congressional representation is seriously flawed. You being more of a expert than I, would know well how many such flaws exist. In the end the only solution to people taking wrongful advantage of these flaws is either a Constitutional Convention (fat chance) or a political solution. It is as you imply a shitty situation.
That ole WSJ. Selective reading as usual.
And the repubs are shocked, shocked:
McConnell: “Neither has undergone a single confirmation hearing or a single day of debate by the representatives of the American people,””
translation:”‘we didn’t get a chance to beat up on them and every other dem target in sight with ‘committee hearing kabuki'”
Obama’s NLRB Appointments: Why the Rush?
If it becomes clear that Obama has little chance of winning a second term, extra-constitutional actions like this set of appointments will seem modest. Supporting this action for partisan reasons will create even more severe and long-term problems when the party in power changes and the precedent has been set.
omega99:
Yours is a reasonable analysis, but it means that should a vacancy occur immediately prior to the Senate going into recess (and perhaps before anyone in government learned of the vacancy), the President would be powerless to do anything about it until the Senate reconvened.
The comments of Hamilton are also interesting. They assume that the Senate will perform its own constitutional duties in good faith. Ironically, the Senate has completely perverted the process by artificially remaining in “session” for the purpose of not voting to confirm or reject while simultaneously denying the President the ability make a temporary appointment.
If I was the President at this juncture I would do the following: Hold a press conference and provide a list of all appointments which are pending–have been presented for confirmation. Inform the public that at the next recess which occurs after three months I will appoint every single appointee on this list. This will give Congress time to hold hearings, have a committee recommendation up or down and a full vote. At this press conference I would also provide a list of every known committee with a list of its members.
Finally, any appointee who is filabustered or tabled would be appointed at the very next recess–forget the three month hiatus on those..