The Constitutional Politics of Recess Appointments

President Obama and Senate Republicans appear headed for a showdown over the President’s recent grant of a set of recess appointments. One such appointment went to former Ohio Attorney General Richard Cordray to head the Consumer Financial Protection Bureau (CFPB).  Others went to three new members of the National Labor Relations Board (NLRB).

The Senate was not in recess when Obama made the appointments, Republicans contend, and therefore the appointments were unconstitutional.  Not so, counter the President and his supporters: The “pro forma” session of the Senate does not count as a real session.  Yes it does, Senate Republicans say, threatening to sue, if only they can find someone with legal standing to do so.  And on and on go the arguments and counter-arguments.

Who’s right?  Although the answer to the question of when the President can make recess appointments is not completely indeterminate, in this column I shall argue that there is enough uncertainty here to support either side.  More broadly, I will contend that politicians and concerned citizens cannot reach a sound conclusion on hard procedural questions of this sort without some reference to the underlying substantive issues.

In hard procedural cases, the side with the weaker political argument will tend to claim the procedural high ground.  Here, that is the Republicans.  Accordingly, the President and his supporters would do well to fight back on the substance, taking their case to the American people that the CFPB and NLRB need to be empowered, not hamstrung.

The CFPB and its Director

In July 2010, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act to curtail some of the practices that are thought to have led to the financial crisis of 2008.  Dodd-Frank included a provision creating the CFPB, which was tasked with protecting consumers against unfair credit practices that led them to take on too much debt at rates of interest that they could not afford.

The CFPB did not begin its operations until 2011, by which time Republicans had increased their numbers in the Senate and had become the majority party in the House of Representatives.  Even though the CFPB was largely the brainchild of Elizabeth Warren, Senate Republicans made clear that they would filibuster an attempt by President Obama to name her as director of the Bureau, and the President acceded, nominating Cordray.

But Republicans—who had opposed creating the CFPB in the first place—now sought to use their confirmation power as leverage to weaken the CFPB.  Unless the President agreed to legislation stripping the CFPB of its independence, they said, they would filibuster any nominee to head the bureau. Republicans took a similar position on the NLRB, which they view as too favorable to labor.

The President was unwilling to cave in to this pressure, so he waited until the Senate left town, and then gave recess appointments to Cordray and the new NRLB members—even though the Senate technically remained in session.

Recess Appointments, Pro Forma Sessions, and Filibusters

The President’s power to make appointments without Senate approval is clearly stated in Section 2 of Article II of the Constitution.  That power was included in the original Constitution at a time when long-distance travel was difficult and time-consuming, and so, in order for Senators and Congressmen to remain in touch with their home states, Congress was not in session for months at a time.  The Constitution thus empowered the President to make recess appointments to ensure that vital work of the government could be accomplished even when Congress was in recess.

Given modern transportation and communication, the recess appointment power may seem anachronistic, but everyone agrees that the plain language of the Constitution remains operative.  Thus, even former Reagan Administration Attorney General Edwin Meese, writing recently in The Washington Post with the Heritage Foundation’s Todd Gaziano, defended the power of the President to make recess appointments whenever Congress is formally not in session.

But, Meese and Gaziano averred, in order for the President to use the recess appointment power, Congress must actually be in recess.  And because Congress had not formally adjourned when Obama named Cordray to head the CFPB, they added, the recess appointment power did not come into effect.

One may be tempted to dismiss the argument made by Meese and Gaziano as merely partisan, but they correctly note that Democratic Senate Majority Leader Harry Reid also kept the Senate in pro forma session during the Bush Administration to prevent President Bush from making recess appointments.  If a pro forma session was enough to block a Republican President from using the recess appointment power—and Meese and Gaziano say that it was—then it also should be enough to block a Democratic President from doing the same.

Of course, one could equally avoid charges of “home cooking” by concluding that pro forma sessions do not block recess appointments, whether they are employed by Democrats or by Republicans.  So argues Harvard Law Professor Laurence Tribe in a recent opinion piece in The New York Times.  Tribe condemns the use of the pro forma session by either party, pointing to a long history of Presidents’ using the recess appointment power whenever the Senate is effectively in recess for a sustained period of time (by custom, ten days or longer), regardless of whether Congress has formally adjourned.  An Office of Legal Counsel memorandum makes the same point.

The Constitution says that the consent of the House of Representatives is necessary for Congress to officially adjourn, and the Republican-controlled House is playing along with Senate Republicans by withholding its consent.  In these circumstances, Tribe says, the recess appointment power should fill the void.  Without a director, the CFPB cannot exercise all of its statutory authority.  Likewise, the NLRB needs a quorum to function.  Thus, permitting recess appointments here fulfills the core purpose of the recess appointment power: to permit the government to do its vital work.

The Relevance of the Filibuster

Adding to the case for President Obama’s use of the recess appointment power is the Republicans’ promiscuous use of the filibuster.  If Cordray and the new NLRB members were put to an up-or-down vote in the Senate, a majority of the body would favor their confirmation.  However, in recent years the Republican minority in the Senate has converted the filibuster from a rarely used tool into a routine tactic, so that it has become virtually impossible for the Senate to act at all without a 60-vote filibuster-proof supermajority.  Thus, it looks as though President Obama is right that Senate Republicans are the ones subverting American democracy, not him.

Yet matters are not so simple.  Many Democratic Senators want to preserve the filibuster because they anticipate that someday—perhaps as soon as January 2013—they will be in the minority.  Although the filibuster enables a Republican minority of 41 Senators to block action by a Democratic majority in the Senate, it will also permit a Democratic minority of 41 Senators to block action by a Republican Senate majority.  Indeed, Democrats and Republicans routinely reverse their respective positions on the legitimacy of the filibuster whenever the Senate changes hands, just as they have lately switched positions on the pro forma session.

Nor is it possible to say that they are wrong to do so, at least not without regard to the underlying politics.  As someone who thinks that we would be substantially better off with a functioning CFPB and NLRB than without them, I am sympathetic to President Obama’s position on his use of the recess appointments in these cases.  But I can certainly imagine circumstances in which I would take the procedural view now held by the Republicans.

The Underlying Politics

Consider an admittedly fanciful example.  Suppose that a gun-crazed Republican Congress passed, and a like-minded Republican President signed, a law creating a federal Bureau of Child Protection (BCP), tasked with the mission of arming all children over the age of seven with handguns.  Now suppose that a Republican President wanted to name an otherwise unobjectionable former state attorney general to head the BCP, but by blocking his appointment, Senate Democrats could prevent the BCP from distributing handguns to children.  Wouldn’t Democrats be justified in filibustering the nominee’s confirmation?  Wouldn’t a Democratic House be justified in keeping the Senate in pro forma session to prevent the President from making a recess appointment to put a head of the BCP into place?

I believe that the answers to the foregoing questions are yes and yes.  Accordingly, I cannot say that the Republicans are wrong to use the tools that they have been using to try to block the President’s efforts to make recess appointments without reference to the underlying utility of the CFPB and NLRB—any more than I could say that Democrats would be wrong to take my hypothetical BCP’s utility into consideration when deciding whether to block the appointment of its head.

To be sure, if the controversy over President Obama’s recess appointments ends up in court, no judge will openly admit that the validity of a recess appointment turns on the policy value of the underlying position.  Instead, if they do not dismiss the case as non-justiciable, the courts would have to make a judgment about the constitutional meaning of “recess.”

A Difficult Constitutional Question, Not a Slam-Dunk

Based on the historical practice and practical considerations that Professor Tribe and the Office of Legal Counsel cite, a sensible opinion could be written affording the President a recess appointment power even during a pro forma session of the Senate.

However, Article II, Section 3 of the Constitution gives the President the power to choose the time of adjournment of Congress, but only if the two houses disagree about the matter.  That grant of power could be read to entail that, conversely, where the houses of Congress have not formally disagreed, the President may not unilaterally conclude that Congress is in recess.

To be sure, a 2004 decision of the U.S. Court of Appeals for the Eleventh Circuit holds that the President’s power to grant recess appointments exists even during intra-session breaks that do not formally constitute adjournments.  Yet a dissent by Judge Rosemary Barkett calls that conclusion into question, and the Supreme Court has never addressed whether the recess appointment power applies during intra-session, as well as inter-session, recesses.  Nor has any court ever addressed whether a pro-forma Senate session blocks the recess appointment power.

Moreover, the matter is still more complicated in this case, where the Democratic-led Senate could have adjourned (because a motion to adjourn is not debatable, and thus not subject to a filibuster), were it not for the Republican-led House’s refusal to adjourn.  Perhaps the validity of a recess appointment should turn on whether Congress is formally adjourned, whether by its own vote or by a valid adjournment effected by the President.

Such a test would obviate the need for the courts to draw an arbitrary line specifying how long the Senate must be out of town to constitute a recess, or how much business falls below the pro forma threshold.  The Democrats could have satisfied that test if the Senate had voted to adjourn (by a simple majority); the Republican House had voted to stay in session; and President Obama had then exercised his constitutional power to declare an adjournment of Congress.

Does the failure of the Democrats to take those formal steps prior to the President’s attempt to make recess appointments render those appointments invalid?  Perhaps.  But the courts would need to answer several other questions before even reaching this one.  In any event, there is enough uncertainty here to lead me to think that the case is not quite the “slam-dunk” that Professor Tribe believes it to be.

Extreme Procedures Should Be Reserved for Extreme Cases

Even if the recess appointment issue poses a potentially difficult question of constitutional law, the politics are—or at least should be—straightforward, as President Obama appears to understand.  The Republican efforts to block the appointments of Cordray and the NLRB members by threatening a filibuster and keeping the Senate in pro forma session are not objectionable on the ground that the filibuster and pro forma legislative sessions are inherently problematic.  Those efforts are objectionable because the country needs a functioning CFPB and NLRB.

In an extreme case—like my hypothetical federal bureau for arming children—it would be appropriate for members of Congress to use every legal gimmick available to block the President.  And until the issue is authoritatively resolved by the courts, it appears that there is enough wiggle room to argue for or against the constitutionality of the President’s use of the recess appointment power during a pro forma Senate session.

What makes Republican obstructionism objectionable in the current circumstances is the end, not the means.  The contemporary Republican Party regards consumer protection and labor rights as extreme “socialist” programs, justifying extreme procedural measures.  President Obama and his allies can win this fight in the political domain by explaining why that Republican view is itself the real extremism.  The procedural debate is a sideshow that merely illustrates the real ideological stakes.

Podcast: Play in new window | Download