The Great Recess-ion

January 13, 2012

I’ve been thinking a lot about the recess appointments since the OLC opinion was released yesterday. (Not that I wasn’t thinking about it a lot before; for past posts of mine on the topic, see here, and here, and here, and here). I’ve been reading a lot on the internet. I’ve talked to a bunch of people. I even forced myself to listen to some talk radio, because I wanted to see what the far right’s reaction was to the opinion. What I came away with was a sense that some perspective is needed, all-around. As much as I’m whig-ging out about this, there are reasons to believe it’s not as consequential as some think. To wit, three points:

1. The current political-institutional situation is quite rare. We are in a very rare form of divided government right now. There have only been three instances since world war 2 in which one party has controlled the Senate and the other party has controlled the House: the 107th Congress after Jeffords switched parties (2001-2002); the first three Congresses of the Reagan presidency (97th-99th Congresses, 1981-1986); and the famous “do-nothing” 80th Congress (1947-1948). If the Democrats controlled the House right now, the Senate would have had a traditional adjournment for about a month right now, making a recess appointment obviously constitutional, if not loved, to everyone.

If the Republicans controlled the Senate, the Cordray nomination may very well have been outright rejected already in an up/down vote. Even if that was the GOP playing hardball and rejecting all nominees, you’d have a much more clear-cut institutional standoff. Instead, we have the awkward situation where it appears that the bare majority of the Senate probably wants the nominee approved, but can’t adjourn to allow for a standard recess appointment, and thus the majority of the Senate is trapped in a classic position of having to suppress their institutional prerogatives in order to get their desired policy outcome. That’s more or less the blueprint for how the President sucks power away from the legislature. But, as I said, the good news is that it’s a pretty rare structural situation that we are in.

2. Another thing that makes this a rare situation is that the CFPB is a new entity. Somehow in discussion of all of this, it has been lost that recess appointments aren’t necessary to temporarily fill a huge number of executive branch positions. The Vacancies Act allows the President to fill a large number of vacant PAS (i.e. Senate confirmed) positions with “acting” officers, who can serve in the position (in most cases) for up to 210 days. One of the exceptions to the Vacancies Act is that it doesn’t apply to new positions, which means that the President can’t fill the CFPB via the Act. It also doesn’t apply to judicial nominations. And while the Vacancies Act has its own problems and constitutional concerns, it has the virtue of being congress-approved law that the President can use to fill vacancies even when efforts to thwart recess-appointments are in place.

3. Recess appointments aren’t as great of a presidential weapon as some say. Jonathan Bernstein wrote a thoughtful post yesterday about the OLC memo, and his most important point was that recess appointments have limitations. He writes:

I don’t think that recess appointments are much of a threat to the Senate’s role. As a presidential weapon, they lack punch. On judicial nominations, recess appointments are massive surrenders for the president since they involve trading a lifetime slot for a short-term one. And even in the executive branch, recess appointments have real disadvantages over regular confirmed nominations.  Recess appointments at best are a weapon for presidents to use in negotiating with the Senate, not a potential replacement for it.

I’m more concerned than he is (but there aren’t a ton of people as whiggish as me), but the point about the judicial appointments is excellent and very important. That judicial appointment power of the presidency is a long-term power, and using recess appointments to appoint federal judges, while a nice solution to all the vacancies and thus the caseload issue in the federal courts, does not enhance the president’s power all that much.

And now one thing I have to get off my chest [warning: cranky whig-blogging ahead].

4. I am not a big fan of reading into what the majority of the Senate wants. I disagree with Bernstein (and the OLC, and many others) when he says this:

[M]y sense is that it’s a close call if the majority of the Senate insists that they are not in recess while the president believes that they are for all practical purposes, but that it’s a much less close case when the majority of the Senate agrees with the president and only the House (and the Senate minority) disagree.

I certainly understand the logical case for this — the House is not contemplated as having a role in nominations, and therefore shouldn’t be able to prevent recess appointments by forcing the Senate into staying in session after the Senate minority has filibustered the bare majority’s desire to have a nominee confirmed — but I’m not willing to give up on the idea that the House and Senate rules are exclusively a matter for the House and Senate, and that the Constitution is plainly clear on this point. So what if a majority of Senators want to go home? The Constitution says that cannot do that if the House does not agree, and it matters not why the House does not agree and it matters not why they want to go home. The House can force them to stay there, and while they are there, they are in session. (Now, maybe the argument that the House is in pro forma session would be strong, but I think most people want to make the case that even if the House was passing legislation and was there around the clock, that wouldn’t legitimate a pro forma Senate session as a real session.)

And so what if they aren’t conducting any business? God knows there’s no rule in the Constitution that says things have to be accomplished during a session of Congress for it to actually be a session. How many days go by where the Senate floor is merely the host to speeches, punctuated by endless and lengthy quorum calls, with the actual movement of legislation tied up in negotiations. The argument seems to be that during a pro forma session held together by a UC, the Senate can’t possibly get itself into executive session to advise and consent, and therefore it’s not in session. I think that’s false: there’s nothing in any UC that can’t be broken by a subsequent UC; if a second Senator shows up to the pro forma session, he can theoretically move a new UC to go immediately into executive session and consider the nomination. Instantly. Which is emphatically NOT the case, for instance, if the Senate has adjourned sine die for the session.

But more importantly, the only judge of the contents of a UC, or the existence of the UC, or anything else related to the session should be the Senate itself. Article I, section V. If the Senate wants to pass a resolution saying that pro forma sessions aren’t actual sessions under the constitution for the purpose of recess appointments, well fine. And I get the idea that the President is not without basis for judging what is an isn’t a constitutional recess. And this current case is certainly the maximal test: the majority doesn’t even want to be in session. But even in the maximal situation, we create an odd constitutional situation if we say some Senate sessions aren’t actual Senate sessions: the Senate would currently not be in session under the recess clause, but it would be in session for the “can’t adjourn” clause. That’s a weird gray area being occupied. Did we inadvertently just destroy the “can’t adjourn” clause? I don’t know, and I don’t know if that even matters in practice. But we should figure it out.

Still, there’s a lot of worries to come still, down the road. What happens when the Senate and President are in true conflict, as the undoubtedly will be over this, as soon as one party controls the Presidency and the other controls the Senate. Who can and/or will say what the limiting principle is: what if the Senate shows up for half an hour and receives communications? What if they show up for an hour and pass a resolution? At some point, in order to continue this recess appointment game, the President is going to need to claim that he is the primary judge of whether the Senate is in session or not. And that will be patently absurd under the Constitution.

So to me, even in the maximal case we are currently in, the Senate needs to be considered in session when it says it’s in session. And the UC plainly says it is in session. Again, if the Senate wants to declare itself not in session for the purposes of the recess clause but in pro forma session for the purposes of the “can’t adjourn” clause, I would be willing to accept that. But this has to be a formal decision of the Senate. Not the majority leader’s stated preferences in news conferences; the actual preferences of the Senate. Right now, the Senate has officially declared itself in session. And therefore, I would defer to that reading, even if the President and 53 Senators are saying otherwise. I know the majority wants out, but again, they don’t want out bad enough to undue the filibuster. And therefore, they should have to live under the rules as applied.

Besides, there are plenty of other options available to the pro-appointment actors that do not require new readings of the Constitution. For one, if the majority of the Senate wants this nomination so badly, they are free to try to change the Senate rules and eliminate the filibuster. But they have not even tried that, probably because the majority of the Senate prefers to have the filibuster than to have the Cordray nomination. Given that, it seems to me that the majority wants to have its cake and eat it too; they want to preserve the filibuster, but they also want the Cordray nomination. And thus the resorting to the recess appointments.

But set that aside too. The president has the authority under Article II to break a deadlock between the chambers over adjournment. I honestly have no idea how that works — I don’t even know if the clause has ever been used — but its existence suggests that there’s a constitutional mechanism for dealing with the current situation that doesn’t include setting a precedent of allowing the President to judge the importance of the business being conducted in the Senate.


One Response to The Great Recess-ion

  1. […] been quite a lot of debate lately about the Constitutional definition of a “recess.” This has brought on even more […]

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