Below is today’s column, which concerns the subject upon which I will be testifying this morning before the full House Judiciary Committee: recess appointments.
For most Americans, the term “recess” brings to mind fond memories of free time to play outside the strict rules of the classroom. For presidents, the term can have the same euphoric effect as a free hand to play outside the strict rules of the Constitution.
While the Constitution requires high-level officials to be confirmed by the Senate, an arcane provision in Article II states that a president can make recess appointments when Congress is not in session. However, what if Congress did not think it was recessed and a president handed out appointments over the equivalent of a long weekend? That is the controversy brewing in Congress, which is looking into four appointmentsPresident Obama made in January. Those appointments include that of Richard Cordray, who had been denied confirmation to a consumer protection board in a Republican filibuster.
For the record, I support Cordray, a well-qualified nominee who has been treated poorly by the political system. However, in a nation committed to the rule of law, it is often as important how you do something as what you do. This is not the way to win a fight with Congress over a nomination.
Partisan gamesmanship
The controversy is loaded with partisan rhetoric and chest pounding on both sides. It is the common lament of academics that the concern over the faithful interpretation of the Constitution arises only when it is politically expedient. Though there are exceptions in Congress, the Cordray appointment is a prime example. Many members who were silent during the recess appointments of George W. Bush have become vocal opponents of the practice under Obama. Conversely, Democrats who now stand silent once cried foul when Bush used recess appointments to circumvent significant opposition to nominees, such as John Bolton to be ambassador to the United Nations.
Yet the latest recess appointments push this controversy to a new extreme. The shortest prior period for a recess appointment in recent history was a break of 10 days. In this case, Congress did not intend to take such a recess and took steps to “stay in business” to prevent any end run by the president. Under the Constitution, neither chamber of Congress can recess for more than three days without the consent of the other chamber. This winter, the House expressly declined to give consent — holding sessions every three days to prevent any recess appointments. Moreover, this session was hardly “pro forma.” Just three days after going into the session in December, Congress passed the president’s demand for a two-month payroll tax holiday extension. So the Obama administration was doing business with Congress on important legislation while simultaneously claiming that Congress was functionally out of session.
Since the very first administration, presidents have taken advantage of this free hall pass to fill offices. The first five presidents made dozens of recess appointments, including five to the Supreme Court. Ironically, some of these appointments proved the wisdom of requiring confirmation. For example, George Washington gave a recess appointment in 1795 to John Rutledge of South Carolina to serve as chief justice. Rutledge was later described by his fellow South Carolinians as prone to “mad frollicks” and “frequently so much deranged, as to be in a great measure deprived of his senses.” Rutledge tried repeatedly to drown himself in various rivers before finally resigning within a year of his appointment.
The use of such unilateral power strikes at the very heart of our system of government and dangerously tips the balance of power. President Obama clearly wanted to make a point about his effort to protect consumers. But for the Constitution, that political point comes at too high a price. Replacing an intransigent Congress with an imperial president is no bargain for those who value our constitutional system.
When it made sense
While there can be debate over the precise meaning of Article II’s reference to “vacancies that may happen during the recess,” it was not intended to mean this. The earliest interpretations of this language took the plain meaning of the language as addressing vacancies that occur during a recess. In the early period of the Republic, Congress would often be recessed for six or even nine months out of the year. Alexander Hamilton and others argued that the provision simply reflected this practical necessity to fill positions during breaks.
With the long modern congressional sessions, the motivating concern behind the Recess Appointment Clause is largely gone. It is primarily used today for the purpose that the Framers clearly did not intend — circumventing Congress. For that reason, I have criticized past presidents for appointing submitted nominees who were not confirmed because of congressional opposition.
The Cordray appointment, like its recent precedents, threatens to turn a carefully balanced process of nominations and confirmations into little more than a type of blinking contest with Congress. Putting aside the contradiction with both the language and history of the Constitution, it is bad policy and an abuse of power that all citizens, regardless of party affiliation, should condemn.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors. He will testify on the recess appointment power before the House Judiciary Committee on Feb. 15.
USA Today February 15, 2012
@rafflaw: The Constitution does not mention the filibuster because it is an invention of the Senate, in forming their rules.
>> how can a minority rule be constitutional?
Do you believe it is fair that a jury must be unanimous on a verdict, or do you think a jury should be majority rule?
Do you think it is fair that minority religions are protected, or do you think that if a majority of America wants Christianity to be encoded in law, it should be done?
In order to ratify a treaty, it requires 2/3 of the Senate. Do you think that is unfair, that 34 Senators can block a treaty?
There are many examples of a minority having a power that the majority cannot overturn, that are entirely Constitutional. The Senate chooses its own rules, and the filibuster preventing a confirmation is a result of the Senate following its own rules about what it takes to limit debate. Constituionally.
(I am not saying it is fair or sensible, but one should not think of “following the Constitution” being synonymous with producing either fairness or sensibility).
A foolish consistency is the hobgoblin of little minds. Allowing the country to be destroyed, or evil done, or an administration sabotaged for political gain, by a set of arbitrary rules put in place to placate a malignant minority does not make sense to me. I understand Tony your dislike for Obama, but it is your rigidity in insisting that he plays by rules that others are exempt from that is perplexing. You seem to get that a minority is disrupting normal governmental processes, but you can’t get that just because it is vaguely constitutional, makes it no less destructive of Constitutional government.
Tony C.,
Is there an express right to filibuster written into the Constitution?
Actually Tony C., the Constitution does not mention the filibuster. The language in the Constitution does allow each House to do its own rules, but how can a minority rule be constitutional? How can a minority veto something or someone that the majority is in favor of? The Senate rules need to improve or remove the filibuster and special holds rules. Without that, the appointment process will never be improved.
http://www.tnr.com/blog/jonathan-cohn/99279/obama-cordray-nlrb-recess-appointment-session-constitutionality Another that says “yes” to the case of constitutionality of the appointment.
http://www.washingtonpost.com/blogs/ezra-klein/post/is-the-cordray-appointment-constitutional/2011/08/25/gIQAXivsaP_blog.html Not every expert thinks that it is unconstitutional.
@rafflaw: So the President is required to pick somebody the Senate approves and at least currently by the Senate’s own rules that approval can be withheld by a minority using the filibuster, and that is all 100% Constitutional.
The whole point of Turley’s testimony was that IS the reading of the plain language of the Constitution, and Obama is violating it.
@rafflaw: The Senate chooses its own rules, by the Constitution. They have chosen rules that allow a minority veto, they can change that rule at the beginning of any session and they know it, but they have not. The filibuster was the minority veto of Cordray’s appointment. They voted on it, they knew what they were voting for, and by their rules the Senate consent was not provided.
How the Senate operates was largely left up to the Senate by the founding fathers. The Constitution says in some circumstances how much of a majority is needed (2/3 for a treaty, for example) but in this case it does not, it leaves that up to the Senate.
I completely disagree, what is the S.E.C for? Never mind the other regulatory bodies that already exist? There is no real interest in reigning in banks or they would have been let to fail. They have only grown since the crisis and if my reading is correct once the fed stops giving them free money, they will fail again. More agencies, regardless of who is at the helm are not going to help, are you going to hire the whole country to look at every transaction, bankruptcy would have straightened out the system, not more suits with political interests.
Tony C.,
The Senate never voted on Cordray’s appointment. The only vote was to overturn the filibuster which did not pass. The President is not required to pick someone that the minority is willing to confirm.
Holy Cow!
What about signing statements and the “line item veto”, what about executive privilege and his declaring war (by sending in our troops and material) without declaring war (which is Congress’ job, last i looked, but it doesn’t matter as long as they financially support it, or them in our case)?
It’s gettin’ pretty close to dictatorship of some sort here, but we keep just going along with all this. Where’s the outrage? This is exactly how dictatorships start – if the populace are pushovers, they’ll take advantage of the power and use it against the citizenry. One of the problems of “government”.
Cheryl: exactly. And look what they’re doing in the name of abortion prevention!
http://www.dependablerenegade.com/dependable_renegade/2012/02/the-culture-of-life-my-sweet-ass.html
@Cheryl: If you had bothered to read Professor Turley’s testimony, you would discover it has been the Presidents that started the fight, by trying to circumvent the Constitution in the first place.
The Constitution demands that appointments be confirmed, and all the historical quotes from the founding fathers indicate that the “recess” appointment was a power only to be exercised if a vacancy occurred during a recess, and if it would be months before the Congress could decide on an appointment. Not minutes or hours or days.
The Senate decided on Cordray, they rejected confirmation by allowing a filibuster, as was their Constitutional right. It is the President trying to circumvent the Constitution, not the Senate. The President is clearly required by the Constitution to pick somebody they are willing to confirm, and the charade of pro forma sessions was just a way for the Senate to hold Obama to the Constitution, which he has violated once again.
The Constitution does not give the President the power to appoint officers of the government without approval by the Senate, if that results in a deadlock, so be it. That is clearly what the founders wanted, either we compromise or we leave things as they are, there is no mandate that we must change, and thus no need to give one side the power to force their will upon the other.
Rule by law, rather than rule of law?
D.S.
You are absolutely wrong about Cordray’s appointment. HIs office will go far in checking big business. That is why the Republicans refused to allow his appointment to be voted on with a majority vote.
Why is it not alright for the president to make a recess appointment in this instance but it is alright for Congress to lie through it’s teeth and say it is still in session when only one or two folks stay in town to keep the lights on and bang a gavel every so many days? It seems to me that Congress started that fight and it’s not one that any President will back down from. When Congress starts doing it’s job and filling the vacancies timely and doing it on the merits of the nominees (rather than brinksmanship), the problem of recess appointments will go away automatically.
“However, in a nation committed to the rule of law …” when it doesn’t interfere with politics
I’m 100% in agreement with Gene and others but I’m restating Gene’s words:
“Absolutely. The single biggest obstacle to progressive reform and the restoration of the Rule of Law in this country is without a doubt the obstructionist graft weasels in the Senate.”
Hey big govt liberals will use the “necessary and proper” clause argument as usual. Maybe the interstate commerce clause, who knows but almost nothing that passes for legislation or executive order follows the constitution anymore. Republicrats are all the same, one wants war the other socialism, hey let’s meet in the middle and have them both. In the process who cares if we destroy the dollar and the rule of law. Mr. Corday is being appointed to an office that shouldn’t exist, it will simply make a thousand more rules that favour big business and stifle competition, if the federal reserve created most of the mess, then why should we allow them to control the solutions by putting this beaureau in their control, outside congressional oversight? Because they don’t want the public to fully understand how rigged the game is.
What Mike S. said!
Gene, if the Citizens United doesn’t get quickly overturned, nothing else is possible. Hell, the Right is now claiming that corporations have religious beliefs! How is that possible?
Lets face it, there are good comments for both sides of this issue, in the sense that everyone realizes a real problem exists.
A problem that impairs a rationally functioning government and can even paralyze segments of government on occasion.
That much can certainly be conceded by either side of the issue.
The rub comes when we submit our solutions.
Should we blame the constitution by watering it’s text down with “interpretation”, or rather should we blame the Senate for stonewalling appointments, and hose them down instead?
The people are supposed to punish the Senate by voting them out … problem is that can only take place each six years.
The president is not supposed to punish the Senate, by ignoring their advice and consent, either.
What were the framers thinking when they expected the Senate and President to act like mature adults?
AS IF !!!!!!!!!!!!!!!!!!!! 😉
I am an Originalist of a different bent. The Framers of the Constitution would be a bit bent if George Washington had put up the name of say Sam Adams to be Secretary of State and then the Senate sat on the nomination because one Senator did not like anyone from Massassachusetts. And the Senate sat on the nomination for say six months.
I think that this President shoudl inform the country that if a nomination is stalled, or if it is held up by one Senator, and more than three months go by, then the President will fill the recess appointment. We cannot have positions open and the business of the country bumbling along like this.
If the position is that of Secretary of Homeland Security I would want a vote on the nomination within a shorter time.
Judicial appointments are a different matter. But the ability of one schmuck to be able to hold up a vote is a disgrace. Up or down.
The Republican Party has an agenda with one item on it: make the President look bad and do anything, even ruin the economy, to accomplish this.
The Judiciary Committee needs to hear from a dog if they are going to listen to a Professor. I am sending this letter off to the Judiciary Committee.
Talkindog
Aside from all the legalities:
“Bette Noir
1, February 15, 2012 at 9:49 am
So, what’s a President supposed to do, when a single Senator can prevent him from filling a vacant post? Sit on his hands and fret? Pace the Rose Garden, a la Carter?
When the stated intent of the “loyal opposition” is to bring down the Administration, how is the Administration supposed to get the work of governance done?”
TOUCHE!!
This agency needed someone to run it,on our behalf.Some Senators complaints was it gave the head too much power.WHAT?
New Consumer Finance Protection Bureau Promises Agile IT
While other federal agencies struggle with outdated legacy systems, the new Consumer Finance Protection Bureau aims to keep lean with agile processes, cloud computing, and open source.
By J. Nicholas Hoover InformationWeek
February 14, 2012 09:00 AM
http://www.informationweek.com/news/government/cloud-saas/232600744