Abuse Of Power: Obama’s Recess Appointments And The Constitution

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

69 thoughts on “Abuse Of Power: Obama’s Recess Appointments And The Constitution”

  1. Tony C, Of course bureaucracies go on. Their continued function is built into the organizational structure and assignment of duties.

    Government offices have a job description or something like it for each position. Most Deputy position JD’s I have seen state as boilerplate that the duties include as a primary or critical function that the Deputy (Director, Chief etc.) will perform the duties of the Director until a new Director is appointed (in cases of retirement, death etc.) or the authority to act (fully or in a specific limited manner.) delegated by the Director (so s/he can go on vacation etc.) is rescinded. This is standard language. The chain of command is never left to chance or allowed to remain ambiguous.

    To bring in an ‘outsider’ in at the President’s call as the acting Director would be seen as a pretext to skirt the advise and consent language of Article 2, IMO. He may be able to get away with it but there would be no secret to what he was doing and I think it would be challenged in court by the Senate. He might not win.

  2. There is validity to the argument that the Senate is failing in its duty by not giving proper consideration to presidential appointments. However, you do not correct one wrong by counteracting it with another wrong. You correct a wrong by correcting the wrong.

    In this case, correcting one wrong by counteracting it with another wrong, is a step towards the elimination of one branch of government and the transformation of the executive branch into a dictatorship.

  3. “So how do we get back to fair play?”

    By stopping it now. If we don’t then what can democrats say when the power is used by the other side. And yes you can say, “but they already did it,” well, then be the bigger man. Somebody has to do the right thing first.

    “In a Madisonian system, it is often as important how you do something as what you do. The Cordray appointment is the wrong means to a worthy purpose.”

    – Jonathan Turley

  4. Tony, a debate on the merits — and you know what I meant and you’re just playing semantics. And everyone else knows it, too. “Mr. Smith Goes to Washington.” Ring any bells? The fact of the matter is that the Senate has turned a protection of minority interests in a democracy into a weapon the minority wields against the interests of the democracy.

    Why? Because the salons have been bought and paid for and it’s in the interest of all the little Lord Fauntleroys serving Citizens United and not the United States . That part you got right; otherwise, you’re just fiddling while the Republic burns. Just fiddling.

  5. @Oro: But a prerequisite of a vote on cloture was that an actual debate was occurring.

    A debate was occurring, whether to proceed with a confirmation hearing or not. The minority did not want that voted upon, so they used the power given to them by the Senate to prevent that vote, and thus the confirmation hearing, because the real debate was whether a Consumer Protection Bureau was needed or not.

    I do not understand you guys. The rules are so simple they are blinding and yet you are blind to logic. The Senate makes its own rules, if they abuse them, they can periodically change them by simple majority vote, but they never do. These are the rules they want. Both Democrats and Republicans. They are not flummoxed or corralled into anything they do not want to do, they want minority rule.

    BOTH parties want to serve their corporate masters and be free to blame the other party. The Majority wants to be able to blame the minority for not passing legislation, or not confirming, or somehow failing their constituents. That is how this game is played: Screw your constituents and blame the other side and simultaneously inform your constituents that if only you had more money, you could fight this good fight better.

    Both sides do that. But the rules are simple, Turley did not have to write 12 pages of testimony, he was done in three. The recess appointment is for when vacancies happen during the recess, NOT when vacancies happen to exist during the recess. Otherwise the Senate must consent. Obama broke the law and spirit of the Constitution, and he did not have to do that.

    Saying the process is broken is not a reason to take the law into your own hands, by saying that you are endorsing vigilantism. The process is broken for stopping gangs, and drug dealers, and assaults. Should we all buy guns and go make our own law?

    Being President does not give a man special privilege to break the law or violate the Constitution, no matter what Bush, Cheney, or Obama may say.

  6. @lottakatz: Do you think that if the FBI director died of a stroke, that the FBI would be forced to stop operating until another FBI director could be confirmed?

    Do you think that if the chairman of the Joint Chiefs of Staff were to die suddenly of a stroke, that our entire military would be suddenly forced to stop business until another could be confirmed?

    Neither hypothetical would hold. The deputy director of the FBI would take over, and he is NOT confirmed by the Senate. And yes, as the deputy without a chief, he would run the organization, and report to Obama, who would actually be running the organization. Obama, as the Chief Executive, could unilaterally hire and appoint a deputy director to run the Consumer Protection Bureau, until such time as a CP Bureau Chief could be confirmed.

    Just because an organization does not have a chief does not mean it cannot operate at all, which is what the Republicans were hoping to do by not confirming anybody. But the CPB was formed by law, and has duties to perform under the law, just like the FBI or Joint Chiefs of Staff, and as Chief Executive it is Obama’s legal responsibility to see that job got done. If he cannot appoint a director, he must act as the director, but like all directors, he can delegate as much or as little as he wishes to his subordinates.

    The solution was simple and could have been engaged without shredding or violating the Constitution. If in fact he HAD hired a deputy to run it, it would have made the filibuster moot.

    Mind, that strategy would not work for a Supreme Court Justice, you cannot just hire somebody to do that job. But the President CAN hire a civil servant without confirmation, even a deputy director.

  7. Requiring a super-majority vote on a motion of cloture (i.e., end debate) was designed to permit the airing of minority and dissenting views. It protected the minority.

    But a prerequisite of a vote on cloture was that an actual debate was occurring. That doesn’t happen any more. A supra-majority vote for cloture in the absence of a debate turns the filibuster into a weapon of the minority.

  8. Tony C.,
    Prof. Turley is the expert here, but I do disagree with him on occasion. The minority, no matter who is in the minority, should not be allowed to control the nation’s business. That is the crux of our problem here. The Republicans have abused the filibuster and hold rules. They also publicly expressed that their only goal is to stop everything Obama. That is why his use of the recess appointments is necessary.

  9. Tony C: “One of the President’s titles is Chief Executive, which means he is in charge of all the civil servants. Which means, the President is free to run the Bureau himself. Which also means, he can appoint a civil servant “manager” of the Bureau that answers to him and runs the Bureau in the absence of a chief or Director, until such time as a chief or Directory can be confirmed by the Senate.”

    Article II, relevant language:
    “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

    Tony C, I don’t see how your suggestion would work, in all practical terms it’s an appointment of someone to lead an agency. I’d like it to work on ocassion but I don’t see it happening and then I remember how Bush’s use of the recess appointment did in truth tick me off totally LOL, Bolton? Srsly?

  10. @rafflaw: Actually both the House and Senate are dominated by minority vetos. In the House, they use committees, where bills die because a handful of House members can prevent a bill from moving forward. In both houses, the majority leader can exercise control over procedure that is an effective veto; not letting a bill come to the floor, returning it to committee, etc. They make their own rules.

    If you think Mike is right, then you are wrong too. Just as Turley stipulates he supports Cordray, he concludes that the appointment is unconstitutional. The issue is not whether I like Obama, the issue is what is constitutional.

    Unlike you guys, I do not base my interpretation of the rules and the English language based on what outcome I prefer, or who I like, or whether a Democrat or Republican will benefit. Rules are independent of partisanship or emotions. I oppose rule-breaking for the sake of expediency because it inevitably leads to the current situation: No rules at all, zero restraint on government, and a President that can violate every one of your civil rights with impunity, including having you assassinated without due process, on his declaration alone.

    The Senate can, in a bill, and constitutionally, allow the President the authority to appoint anybody he wants unilaterally and without consent. It is in the same Constitutional clause! They know that, they know the rules backwards and forwards. So they could have passed that provision along with the bill creating the Bureau, and they already knew full well the Republican strategy of obstructing everything. But they did not, which means they willingly and purposefully subjected the appointment to the minority-veto power of the filibuster.

  11. @zvy thank you! Most of the arguments here are for interventionism, but fail to address what causes most problems, interventionism! Nice to hear a voice here I can agree with.

  12. The matter of the filibuster and secret holds was addressed in 2011 when it was a hot issue and very little substantive change took place, the Senate maintained the power of the filibuster and holds, just not secret holds. Looking to the Senate to clean out its own stall is as effective as handing your horse a rake, ain’t gonna’ happen 🙂

    I’m with the the ‘vote ’em out’ crowd, that’s the remedy people have. If the President is blocked by specific Senators then the DNC needs to do its job and fund candidates against them and the President needs to do some campaigning and name some names.

    I’ve always been leery of the Senate because it was constructed as a brake on the will of the ‘rabble’: the House which is more directly representative of the citizens. The game has always been rigged. But then you look at the House and….. hmmmmm, maybe not such a bad idea. The virtue of the house is the term of office is shorter, citizens can bring on change (or chaos) more quickly.

    There is an argument for gridlock. Was it Mark Twain that said to the effect that the citizenry is only safe from the State was when the Legislature was in recess? There is truth to that too.

    Vote ’em out.

    From Jan. 2011
    “Senate to nix secret holds but keep filibuster rules intact”


    “The first three:
    1. Eliminating “secret holds,” which can delay a nomination or legislation
    2. Eliminating the tactic of forcing the Senate clerk of reading of an amendment aloud if it has already been publicly available for 72 hours
    3. Creating legislation to exempt about 1/3 of all presidential nominations from the Senate confirmation process. These would primarily be low-level nominations for positions not directly involved with policy decisions.

    In the remaining two:
    4. Republican Leader McConnell agreed that he too would not try to change the Senate rules with the constitutional option “in this congress or the next Congress.”
    5. McConnell agreed to reduce his use of the filibuster on motions that bring the bills to the floor for debate. (There was no agreement on the frequency of filibusting bills before passage.) And Reid agreed to reduce his practice of “filling the tree,” which blocks Republicans from offering amendments.”

    The first two items in the agreement will be codified with votes later today, which are expected to pass.


  13. How much more failure will the it take for the US Nation to admit their particular brand of democracy is broken? The Constitution is imperfect (but has a mechanism for improvement), the Judiciary is politicised, the financially weak are powerless and human rights are optional.

    Where have all the critical thinkers gone?

    I’m glad I live in Australia.

  14. If we look to the “original intent” of the Framers of the Constitution and inject thier known attitudes towards, say judicial appontments, then historians would be telling the Judiciary Committee that they should not be appointing African Americans, women, Catholics or Jews to the Supreme Court. An historian might wager that the Framers would be against appointing only graduates of Harvard or Yale. Since we have shorter recesses then the original Framers would say that the Congress has more time in session to act quickly on nominations, not less. So why does the present Congress intentionally sit on nominations for month after month? This President has waited too long to make Recess Appointments and needs to make more of them.

  15. Tony C.,
    I wasn’t suggesting that the Congress Is mandated to follow a majority rule process, but all of their votes, once the Republican’s filibuster or secret holds are overcome, are majority rule. Just a coincidence? I think not. Aren’t the House votes all on a majority rule basis?
    Mike S.,
    Well said.

  16. @Mike: I do not exempt anybody from the rules. What you do not seem to get is that only following the rules you like leads to chaos and anarchy, which leads to monarchy, which is what Obama (and Bush before him) are exercising; unilateral rule without any checks or balances.

  17. @rafflaw: You fail to answer the questions. There are many reasons for allowing a minority veto, including the reasons we allow a minority veto on a jury or for a treaty, because we want a level of certainty beyond the 50%+1 implied by a majority vote.

    So the Senate has chosen a higher level of certainty, namely 60%+1, for the confirmation process. Presumably they want to be more sure than 50%, because they haven’t overturned that rule yet, even though a majority could have overturned it as recently as 2010.

    There is also nothing in the Constitution that expressly demands the House or Senate, as a matter of course, operate on majority rule, or that majority rule is the default.

    With the exception of the cases where specific ratios are mentioned, the Constitution is silent on the question of how the House or Senate will decide anything, and expressly leaves it up to them to form their own rules. So minority veto is not prohibited by the Constitution (and is expressly allowed in certain cases like refusing treaty ratification, Impeachment, Constitutional Amendments or refusing to override a Presidential veto, in all such cases a minority of (1/3)+1 can veto.

    Majority rule is not ensured by the Constitution, and the founders obviously found many decisions warranted something more than a simple majority.

  18. Tony C.,
    The Constitution does not provide for minority rule in the legislature, while it does for ratifying treaties. Apples and oranges.

  19. @Elaine: Yes, because the Constituion gives the Senate the right to make up its own rules and run itself however it wants, and the rules the Senate came up with include (or imply) the filibuster. The Senate could create a rule that all Senators must wear hats on Thursdays, and that would be Constitutional.

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