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View Diary: Recess Appointments Unconsti-wuh? Please Proceed, Republicans. (112 comments)

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  •  You need to know a couple of things (12+ / 0-)

    First, the use of pro forma sessions specifically to prevent the President from making a recess appointment was used by Majority Leader Reid during the last two years of the Bush administration.  President Bush respected the pro forma sessions and did not make recess appointments during that time.  President Obama made the determination that the Senate was recessed despite the Senate's contention that it was not recessed, and made recess appointments.  President Obama certainly was aware when he did that, that his actions would be challenged in Court.

    Second, the "adjourment" thing is not relevant.  As the opinion makes clear, "recess" and "adjournment" are not the same thing.

    Third, the question revolves around Article 2, Clause 3 of the United States Constitution, which allows recess appointments during "the recess" of the Senate.  The Court needed to decide whether they could determine what the Constitution meant by "the Recess of the Senate."  It concluded that, by "the Recess" the Constitution was referencing the recess between sessions of Congress (which used to be six to eight months long).   That is a broad ruling, and will be criticized, I think.  It remains to be seen if the SCOTUS will overrule it.

    By the way, if the Court had concluded that the Constitution left it up to another branch of government to determine when the Senate was in "the Recess," it then the question would have been which branch of government got to decide when the Senate was in "the Recess" -- the Senate (which determined the Senate was not in "the recess") or the President (who determined the Senate was in "the recess).   That may be a fallback position -- that "the Recess" is not limited to between sessions of Congress, but the Senate gets to decide when it is in recess.  The Court concluded it made no sense to conclude that the Constitution gave the President the power to decide when the Senate was in "the Recess" because then Presidents would have complete power (by waiting for some break and declaring the Senate to be in "the Recess) to avoid the Constitutional requirement that the Senate confirm presidential appointments.

    •  Thank you for the actual clarification (1+ / 0-)
      Recommended by:
      Kickemout

      This diary is propaganda designed to whip up a response - not to actually inform.

    •  Turning the constitution on its head (2+ / 0-)
      Recommended by:
      OldDragon, chloris creator

      the point of forbidding one house to adjourn on its own is to keep them from going home without getting essential work done

      yet Congress is using it to do the opposite:  Going home (except for one senator) while at the same time preventing any work from getting done.

      I'll omit the side note on the obvious uselessness of the requirement to stay in session.

      the purpose of the second amendment is to promote a well-regulated militia, in the same sense that the purpose of the first amendment is to promote a well-informed electorate.

      by happymisanthropy on Sat Jan 26, 2013 at 09:20:59 AM PST

      [ Parent ]

      •  The opinion acknowledges that (5+ / 0-)

        the Senate may deliberately be avoiding confirming the President's appointments.  That would mean the Senate is not doing its job.  The Court concluded, however, that this does not change the Constitution, specifically Article 2 clause 3.  The Court concluded that the fact that the Senate is not doing its job does not allow the President unilaterally to determine that he can make appointments without having the Senate confirm them (bypassing the Constitutional "advise and consent" provision) by unilaterally declaring that the Senate is in "the recess" even if the Senate, by its own rules, is not in "the recess."  

        •  But does the senate get to say (1+ / 0-)
          Recommended by:
          chloris creator

          "For our own internal purposes, we're in recess, but for the executive branch's purposes we're still in session?"

          I guess you're going to say yes.

          Humans shouldn't be disarmed, for the same reason that cats shouldn't be declawed.

          by happymisanthropy on Sat Jan 26, 2013 at 09:39:18 AM PST

          [ Parent ]

          •  That is exactly what the court said. (0+ / 0-)

            And I suspect the Supreme Court will likely pass on this question as well, unfortunately.

          •  Actually, what the Senate said is (5+ / 0-)

            "for our purposes, we're adjourned, but not in recess."

            "Adjournment" and "recess" are two different things.  (You can adjourn for lunch,or adjourn for the evening  -- does that count as "the Recess" under Article 2, clause 3, allowing the President to make a recess appointment without the advice and consent of the Senate?)   According to Senate precedent, established under Sen. Reid during the Bush administration, the Senate was not in "the Recess" if an adjournment lasted for less than three days.  Under Sen. Reid, the Senate had a session every three days to prevent President Bush from making recess appointments during the last two years of his term.  When Senate Republicans did the same thing to President Obama, President Obama made the recess appointments anyway.  

            He clearly knew this challenge was coming.  

            The SCOTUS may backtrack some on this opinion, and hold that it doesn't have to be an intersession recess (as this opinion says), but it does have to be a recess under Senate rules -- i.e, the Constitution, by giving the Senate full authority to make its own rules, gives the Senate the authority to say when it's in recess.  That would be a less dramatic ruling, but it would still invalidate these particular appointments by President Obama.

            •  'cept the Senate doesn't, cause the House vetoed (3+ / 0-)
              Recommended by:
              k88dad, indie17, Bensdad

              it.  Which is the whole pt: A majority of Senators, i.e., the Senate, wanted to recess,but could not bc Rs in the House said so. IOW, the Senate did not determine when it was in recess, the House did.  Which would be just as unconstitutional under your view... except the Constitution says it can.

              Also, Art. I, Sec. 7, last clause literally requires POTUS to approve an recess (but not adjuornment), though it can be overriden by 2/3rd vote of both Houses.  So, again, the Senate does not decide
              for itself.

              The question here is backward: It is not when it is in recess. It is: can it only be an adjournment when it is explicitly done in a way that the Senate can not do business of any kind (the pro forma part) for what could, if upheld, be an entire Congressional term?  Or is there a pt where reality overtakes semantics?

              In many other areas of Constitutional law, SCOTUS has had no problem answering that question against the literal words of the Constitution.  War making, the 1st Amendment ('no law', yeah riiiight), the mess the 11th A 'fixed', come immediately to mind.

              •  I'm not sure that (2+ / 0-)
                Recommended by:
                Victor Ward, VClib

                Article I Section 7 requires the President "to approve a recess."  

                At any rate, we'll know whether intrasession recess appointments are constitutional, one way or the other, when the SCOTUS takes this up.  As the CRS report notes,

                What Is a “Recess”?

                Generally, a recess is a break in House or Senate proceedings. Neither chamber may take a break
                of more than three days without the consent of the other.7  Such consent is usually provided through a concurrent resolution. A recess within a session is referred to as an intrasession recess.  In recent decades, Congress has typically had 5-11 intrasession recesses of more than three days,  usually in conjunction with national holidays. The break between the sine die adjournment of one  session and the convening of the next is referred to as an intersession recess. In recent decades, each Congress has consisted of two 9-12 month sessions separated by an intersession recess. The period between the second session of one Congress and the first session of the following  Congress is also an intersession recess.

                Recent Presidents have made both intersession and intrasession recess appointments. Intrasession  recess appointments were unusual, however, prior to the 1940s, in part because intrasession recesses were less common at that time. Intrasession recess appointments have sometimes  provoked controversy in the Senate, and some academic literature also has called their legitimacy  into question. 8  Legal opinions have also varied on this issue over time. In general, however, recent opinions have supported the President’s use of the recess appointment authority during  intrasession recesses.9  Intrasession recess appointments are usually of longer duration than intersession recess appointments. (See below, “How Long Does a Recess Appointment Last?")

                In other words, there has been no real answer.  Presumably the SCOTUS will provide one.  
                •  On further review, you may be right re: Sec. 7, (0+ / 0-)

                  since para 3 states that Adjournement is the only "Order, Resolution or Vote to which Concurrence of" each House is necessary that is excepted from requiring Pres approval or override.

                  But, if so, then 'recess' in Art. 2 means the same as adjournement in Art 1, as the CRS article says, bc, unless I'm missing it, I don't see the word 'recess' in Art. 1 applied to the Congress.

                  OTOH, that would mean if there is a difference bt 'adjournment' and 'recess', then by Sec. 7, para. 2 it would require POTUS approval or override (since para. 1 already covers legislation).

          •  It would then be proper (0+ / 0-)

            for the President to say ..

            "Okay then, for your own internal purposes, I am appointing these folk, to these positions".

            I hope that the quality of debate will improve,
            but I fear we will remain Democrats.

            Who is twigg?

            by twigg on Sat Jan 26, 2013 at 09:52:38 AM PST

            [ Parent ]

            •  It's a constitutional question (2+ / 0-)
              Recommended by:
              Victor Ward, VClib

              that's why it went to the Courts.  And the SCOTUS will tell us (1) what "the Recess" means under Article 2, clause 3, and (2) if the Constitution is not clear on what "the Recess" is, whether the Senate or the President get to say when the Senate is in "the Recess" -- i.e., if it's a "political question" (an issue that the Constitution leaves in the sole discretion of one branch of government) and, if so, which branch gets to decide it.

    •  I added an update with a link to a source document (1+ / 0-)
      Recommended by:
      Eyesbright

      at the Senate website.

      "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

      by leftreborn on Sat Jan 26, 2013 at 09:26:19 AM PST

      [ Parent ]

      •  You should have linked the opinion (5+ / 0-)

        which is here.  That way people could see for themselves what it says.

        The CRS -- what you linked -- expressly acknowledges that the question of when the Senate is in "the Recess" under Article 2, Clause 3, is a question that has never been answered:  

        The Constitution does not specify the llength of time that the Senate must be in recess before the  President may make a recess appointment. Over time, the Department of Justice, through Attorneys General and Office of Legal Counsel Opinions, has expressed differing views on this question, and no settled understanding appears to exist. In 1993, however, a brief submitted by the Department of Justice in the case Mackie v. Clinton implied that the President may make a recess appointment during a recess of more than three days.
         In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. This “Adjournments Clause” provides that “Neither House, during the Session of Congress, shall,  without the Consent of the other, adjourn for more than three days.”  

         Arguing that the President  had made the appointment at issue in the case during a recess of sufficient length, the brief stated:

        If the recess here at issue were of three days or less, a closer question would be presented.  The Constitution restricts the Senate’s ability to adjourn its session for more than three days  without obtaining the consent of the House of Representatives.... It might be argued that this  means that the Framers did not consider one, two and three day recesses to be constitutionally significant.…
        Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.

         The logic of the argument laid out in this brief appears to underlie congressional practices, intended to block recess appointments, that were first implemented during the 110th  Congress. (See below, “Can Congress Prevent Recess Appointments?”)  Between the beginning of the Reagan presidency in January 1981 and the end of December 2011, it appears that the shortest intersession recess during which a President made a recess appointment was 11 days,  and the shortest intrasession recess during which a President made a recess appointment was 10 days.

        What the CRS report that you linked makes clear that, when President Obama made these recess appointments in a situation when there was NOT an adjournment of more than three days, he clearly was "pushing the envelope" and doing something that was, at the very least, questionable as a constitutional matter.  At the very least, he knew it would be challenged.  He might ultimately win, he might ultimately lose, but he clearly knew that there was were questions about  (1) whether, when he made these recess appointments, the Senate actually was in "the Recess" contemplated by the Constitution; and (2) whether he could constitutionally make the determination that the Senate was in "the Recess" for purposes of Article 2, clause 3, when the Senate determined it was not in "the recess."

        Because President Obama's actions raised the issue (as he certainly knew they would), the SCOTUS ultimately will have to decide the question now.  

        •  Don't cherry pick and omit the most relevant (2+ / 0-)
          Recommended by:
          happymisanthropy, Eyesbright

          parts on pp. 11-12 under the headings "Practices Implemented Unilaterally by the Senate" and "Senate Practices Necessitated by the Absence of House Consent to Adjourn."

          The important point is that the House insinuated itself into the confirmation process and it has no role in it.  The representatives even said in the letter, "Let me begin by saying that under normal circumstances, the House of Representatives should not involve itself in nomination fights.  But they did it anyway and they put it in writing.  

          When the House and Senate couldn't agree on an adjournment Article 2 Section 3 gave the President the right to do so.  That's NPR interviewing a Senate historian.  I'm just a reporter.

          “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.”

          "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

          by leftreborn on Sat Jan 26, 2013 at 09:57:08 AM PST

          [ Parent ]

          •  You are really confusing things. (3+ / 0-)
            Recommended by:
            Victor Ward, VClib, Bensdad
            When the House and Senate couldn't agree on an adjournment Article 2 Section 3 gave the President the right to do so
            You are confusing "adjournment" with " the Recess."  That's where you are going wrong.  

            The Constitution uses two different terms -- "adjournment" and "the Recess" -- and we have to presume that was deliberate and meaningful.  In other words, the people who wrote the documents used the different words to mean different things (that's a basic principle of interpreting the constitution or any law).  The part about recess appointments does not use the word "adjournment."   Instead, it deliberately uses the word "the recess," as  follows:  

             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.
            This has to do with what that provision means by "the Recess."  A Recess is NOT an adjournment.  The Senate "adourns" every night.  The Senate rules define "adourn" as " A motion to adjourn in the Senate (or a committee) ends that day's session."

            The question is what is "the Recess" under the recess appointments clause, and who gets to say what "the Recess" in that clause of the Constitution means.

        •  Except it was more than 3 days, the time bt raisin (3+ / 0-)
          Recommended by:
          k88dad, Eyesbright, indie17

          g and lowering the gavel, i.e., to 're-ajourn' or confirm the 'continued' adjuornment, to be specific.  Which federal court's have held to be sufficient for valid recess appointment.

          The bottom line is that the semantic minutae is akin to the number of angels dancing on a pin and, with a normal SCOTUS, as irrelevant.  Of course, with Scalia, Alito, UncleTom, Kennedy and - likely Roberts - this is hardly a normal Court.

    •  Oh, and (1+ / 0-)
      Recommended by:
      zapus

      If "recess" and "adjournment" are totally different things, why do we say

      Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
      is controlling over recesses as well as adjournments, but its companion clause
      If the two Houses cannot agree on a date for adjournment, the President may adjourn both Houses to such a time as befits the circumstances.
      Is not? I can't see how, in the context of the Constitution only, "recess" means anything other than "period of adjournment."  And no, I do not accept that the Senate gets to redefine what the words in the Constitution mean.

      Humans shouldn't be disarmed, for the same reason that cats shouldn't be declawed.

      by happymisanthropy on Sat Jan 26, 2013 at 10:01:02 AM PST

      [ Parent ]

      •  It is a basic principle of constitutional (5+ / 0-)

        analysis (and statutory analysis, for that matter) that the use of different terms is intentional.   Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570–71 (1840) (plurality opinion)  (“In  expounding  the  Constitution  of  the United  States,  every word  must  have  its  due  force,  and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added.”); Marbury v. Madison, 5 U.S.  (1 Cranch) 137, 174 (1803) (“It cannot  be  presumed  that  any clause in  the  constitution  is intended to be without effect . . . .”).

        Basically, if the Constitution had intended for the President to be able to declare the Senate adjourned, and that --- in and of itself -- allowed him to bypass the Constitutional requirement that the Senate confirm his appointees, then why didn't the Constitution use the same word for (1) adjourning the Senate; and (2) making appointments?  Why didn't the Constitution say that the President could make appointments without Senate confirmation "during an adjournment of the Senate" rather than saying, as it did, "during the Recess of the Senate"?  

        And it makes no sense that, whenever the President doesn't think the Senate will like a nominee, the President can simply adjourn the Senate and make and bypass the constitutional requirement that the Senate confirm his nominee.  Why would he EVER seek Senate confirmation?  Why not just continually make "adjournment" appointments?

        At any rate, the question you raise -- do "adjournment" and "the Recess" as used in the Constitution mean the same thing -- is EXACTLY the kind of question the courts -- ultimately the SCOTUS -- are supposed to answer, because it's a question of constitutional interpretation.  

    •  There is a standard for when the Senate is in (0+ / 0-)

      recess, if I had to guess it would be when a quorum could not be assembled(the Senators being out of town).  It will be an interesting argument in any case.

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