Yoo vs Tribe on recess appointments

posted at 1:45 pm on January 7, 2012 by Jazz Shaw

Over at National Review, John Yoo (who you will likely remember from the Bush administration) has an interesting rebuttal to Larry Tribe’s defense of Obama’s recent recess appointments. There’s quite a bit to go through in both articles, mostly because Tribe takes so many wild swings at this particular pinata, seeming somewhat desperate to latch on to some constitutional footing which would justify the moves.

Tribe’s first point -and this one is a serious stretch – is that Article II requires that the president “take care that the laws be faithfully executed.” Apparently, since legislation was passed creating the consumer protection agency and – long before that – the NLRB, then if they aren’t properly staffed they can’t enforce the law. Ergo, the President can pretty much throw out the rule book and appoint at will. Yoo responds:

Fourth, and most eye-opening, is Tribe’s claim that because the president has the duty to execute the laws, he must have the power to appoint Cordray because he needs him to execute the laws. This cannot be right; if so, it would actually require that Congress not just create but also fund executive branch positions. Suppose Congress decided it did not want to make any financial provision for Cordray or for some other government body — under Tribe’s theory, the president one supposes could just take the money out of the Treasury to pay for it. The president, it seems, could appoint someone to any open executive branch position without Senate consent, if the president feels it is important enough.

Even though I am a supporter of presidential power, I also believe that the Framers intended each branch to control its own formal constitutional authorities and functions (which is, in fact, why I defend the presidency so strongly on foreign affairs and national security). And the core power of Congress is the power of domestic legislation and the power of the purse. Congress has the power to decide what the size and shape of the federal government is to be and whether to pay for it — that is the real check on the presidency. Presidents have generally respected those limits, except during time of greatest emergency (such as the outbreak of the Civil War). Obama goes beyond anything any president has before, for reasons that are obviously partisan rather than where the national safety demands it. It is a waste of presidential authority, and one I think that will haunt Obama.

That sums it up pretty well. The question of when Congress actually stands in recess is a bit more complex, but Yoo addresses that also. The framers of the Constitution, for all of their wisdom, actually did leave a few extremely arcane items in the document which lead to much debate in the modern era. One example which often comes to mind is the President’s power of the pardon, as laid out in Article II Section 2. Pardons are to be used in cases of “offenses against the United States” except for impeachment. That phrase may have been perfectly understandable in the 18th century, but it’s nearly unique in the documents of the time. The portion in question today relies on the phrase “… during the recess of the Senate” in much the same way, without providing any concrete guidelines as to how that’s defined.

Unfortunately for Tribe, and as noted by Yoo, if the terminology isn’t clear enough, the answer would seem to be found in Article I Section 5, which reads in part, “Each House may determine the rules of its proceedings…” The final arbiter of what passes for a recess would seem to be the legislative branch, not the executive.

Of course, all of this skips past the original vision of the power of recess appointments which I’ve long opposed in the modern era. Yoo notes the same issue, which is that the founders were making these rules in a time when Congress would frequently be out of town, scattered around the country, and it could take extraordinary measures to gather them all together on short notice. That justified the occasional recess appointment, but it’s simply not the case today. Unfortunately, absent a constitutional amendment, there’s no getting around it.


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If this keeps up we won’t need a legislative or judicial branch.

LizardLips on January 7, 2012 at 6:38 PM

BTW, it turns out that the “interpretation” of the Constitution in this Recess Appointment was made by one single O’Bama DOJ “Lawyer”. And no, it wasn’t Holder.

Film at 11.

Del Dolemonte on January 7, 2012 at 6:38 PM

There was NO recess. Constitutionally, there can be NO recess because the House did not pass a formal resolution in December consenting to a recess for the Senate of more than 3 days. See Article I, Section 5.

The Senate journal and presiding officer says that the Senate was in recess on 1/4/2012. This does not violate the Constitution, because the Constitution only requires the consent of the House if the recess was more than 3 days.

The problem with your argument is that you assume that just because the Senate requires the House’s consent for long (>3 day) recesses, that a recess appointment is categorically invalid if it is made during a shorter recess. Of course, the Constitution says no such thing, and the full 11th circuit specifically said that they were not deciding that there was ANY minimum time.

As for the NLRB decision, that had nothing to do with the executive appointment power; that was a statutory interpretation relating to quorums of groups on the NLRB. But if you believe it might be a predictor as to what happens here, you should look at the outcome of that case. Not only did Kennedy dissent — he WROTE the dissent. (The only reason it did not come out the other way is the vote of Justice Stevens. Stevens is no longer on the court.)

As for the statute, you are correct that the director must be appointed by the President with the advice and consent of the Senate. That exact same language is used in every statute that requires a confirmed position. That language has always been read to include recess appointments. In other words, if you are correct, then all THOUSANDS of recess appoints made over the past century are all invalid, and all of their decisions are null and void.

Best of luck with your “boutique law firm.” However, I would advise you that if you are actually going to represent clients on this issue, you should become informed as to what the relevant law is, what the Constitution says (and does not say), and what courts have said about this issue over the past several decades. It may not be as lucrative as you believe.

jd3181 on January 7, 2012 at 6:43 PM

Breaking the law in order to faithfully execute it is kinda like destroying the village in order to save it.

bgoldman on January 7, 2012 at 6:47 PM

Whatever happens….

This is epic.

/tired. But ready to fight.

Key West Reader on January 7, 2012 at 6:50 PM

BTW, it turns out that the “interpretation” of the Constitution in this Recess Appointment was made by one single O’Bama DOJ “Lawyer”. And no, it wasn’t Holder.

Film at 11.

Del Dolemonte on January 7, 2012 at 6:38 PM

It must have the guy who helped out with that ridiculous Honduran Constitutional assessment that tried to secure Zelaya’s coup for him.

Harvard Law should have its accreditation yanked for foisting this tsunami of America-haters and retards on the Nation. It is a nothing but a dangerous joke, at this point.

ThePrimordialOrderedPair on January 7, 2012 at 6:52 PM

That link is from the day before the Appointment, isn’t it?

Yes, it is. There is no Senate journal on 1/4/12, because the Senate was in recess on that day. The Senate does not have a journal on days on which it is in recess. On the day before the appointment, the Senate adjourned until two days after the appointment.

The Senate was unambiguously in recess on 1/4/12. That doesn’t necessarily decide the question, however; the question is whether that recess was sufficiently significant that it allows a recess appointment to be made. The Constitution does not list any constraint on the recess appointment power, so any constraint will have to come from somewhere other than the text of the Constitution. (This doesn’t mean there is no constraint — it just mean that any such constraint is unknown and has yet to be declared by any court.)

Obama will likely be arguing that the Senate has not had a quorum for weeks, and that Article 1 Section 5 of the Constitution requires that a quorum exist to conduct any business (including advising and consenting). When a court decides the validity of that argument, it will be breaking new ground either way.

My guess is that the court will uphold the appointment, just as every recess appointment has been upheld in the past. But I of course do not know for sure. My only argument here was with Yoo’s statement:

“This is not a question of when does an adjournment become a recess — here, there has been no adjournment.”

That statement is unambiguously false.

jd3181 on January 7, 2012 at 6:56 PM

BTW, it turns out that the “interpretation” of the Constitution in this Recess Appointment was made by one single O’Bama DOJ “Lawyer”. And no, it wasn’t Holder.

Film at 11.

Del Dolemonte on January 7, 2012 at 6:38 PM

It must have the guy who helped out with that ridiculous Honduran Constitutional assessment that tried to secure Zelaya’s coup for him.

ThePrimordialOrderedPair on January 7, 2012 at 6:52 PM

No it wasn’t that guy. It was another guy – the one who declared “Fast & Furious” to be a good idea.

climbnjump on January 7, 2012 at 6:59 PM

The Senate was unambiguously in recess on 1/4/12.

jd3181 on January 7, 2012 at 6:56 PM

… just as it is unambiguously “in recess” every night when it adjourns the day’s work … You’re an idiot. Go back to eating paint chips.

ThePrimordialOrderedPair on January 7, 2012 at 7:06 PM

No it wasn’t that guy. It was another guy – the one who declared “Fast & Furious” to be a good idea.

climbnjump on January 7, 2012 at 6:59 PM

It might have been the guy who did the “reset” translation. He’s always good for thinking out of the box. … out of Barky’s brother’s cardboard box …

ThePrimordialOrderedPair on January 7, 2012 at 7:08 PM

No it wasn’t that guy. It was another guy – the one who declared “Fast & Furious” to be a good idea.

That guy doesn’t exist. Nobody started it or gave approval for it. DoJ woke up one morning, and there F&F was, like a mushroom.

MayBee on January 7, 2012 at 7:15 PM

just as it is unambiguously “in recess” every night when it adjourns the day’s work … You’re an idiot. Go back to eating paint chips.

Yes, it is. That doesn’t mean every night is a recess that activates the recess appointment power. That is a question without a clear, textual answer.

That word “adjourn” (rather than “recess”) is used all the time. In particular, it was used for the recess in which Judge Pryor was appointed by President Bush. I only mention that example (rather than all the others) because Judge Pryor’s appointment was upheld by the full 11th circuit sitting en banc. (The Supreme Court didn’t even take the case.)

jd3181 on January 7, 2012 at 7:17 PM

John Yoo, who assisted Bush’s executive expansion, takes issue with Obama’s executive expansion? How interesting…

gyrmnix on January 7, 2012 at 5:04 PM

Lawrence Tribe, who took issue with Bush’s (supposed) executive expansion, now assists Obama’s executive expansion? How interesting.

Solaratov on January 7, 2012 at 7:21 PM

Obama just recently appointed a Republican to the extremely important Federal Reserve board, after just such a negotiation.)

jd3181 on January 7, 2012 at 5:05 PM

Obama HAD to appoint a Republican to the NLRB. The law states that a certain number must be from opposite parties. It CANNOT be all dem. or all Rep.

How disingenuous of you.

Btw, are you (and others) saying that ANY time the senate adjourns for the day that the president can consider it to be “in recess”? Because the senate journal that you quote says only that the senate “adjourned” for the day. It doesn’t say that they “recessed”.

Solaratov on January 7, 2012 at 7:30 PM

Go read the Geneva Convention, which the United States is a signatory to, and is legally bound.

inklake on January 7, 2012 at 5:56 PM

The United States is NOT a signatory to the Geneva Convention.

We observe its rules, because it’s easier to do so thab bot – but we are not bound by them.
Also, we observe the rules because we hope that our enemies will also observe them in their treatment of our soldiers. (which doesn’t, frankly, seem to be working out so well)

Before you climb on that high horse, you’d better make sure the saddle’s cinched down tight.

Solaratov on January 7, 2012 at 7:40 PM

Obama HAD to appoint a Republican to the NLRB. The law states that a certain number must be from opposite parties. It CANNOT be all dem. or all Rep.

You seem to be arguing with someone else. I said “the extremely important Federal Reserve board,” not the NLRB.

Btw, are you (and others) saying that ANY time the senate adjourns for the day that the president can consider it to be “in recess”? Because the senate journal that you quote says only that the senate “adjourned” for the day. It doesn’t say that they “recessed”.

The Senate Journal almost always says “adjourned.” In particular, it said “adjourned” for the recess during which Bush appointed William Pryor — an appointment that was upheld by the 11th circuit (a case that the Supreme Court didn’t even take). It says adjourned for long and short recesses.

No, I am not saying that any times the Senate adjourns, the President can appoint. I am saying that to whatever extent there is a constraint on the President’s recess appointment power, such a constraint is not listed in the Constitution. That does not mean that such a constraint does not exist; it just means that it is not a textual constraint, and it has not been decided by any court.

Regardless of exactly where the line is (and that is unknown at this time), my argument is that the absence of the Constitutionally-required quorum to conduct business for weeks at a time is a recess during which recess appointments are permitted. Any contrary argument would mean that the Senate of 200 years ago could have blocked all recess appointments for 9 months, despite the absence of a quorum to conduct business for 9 months. Of course, it is up to the court — not me. So we shall see how the courts rule.

jd3181 on January 7, 2012 at 7:40 PM

“…than not -”

Solaratov on January 7, 2012 at 7:41 PM

I said “the extremely important Federal Reserve board,” not the NLRB.

Right you are. I was reading Fed and thinking NLRB. My mistake.
Carry on.

Solaratov on January 7, 2012 at 7:51 PM

The Senate Journal almost always says “adjourned.” In particular, it said “adjourned” for the recess during which Bush appointed William Pryor — an appointment that was upheld by the 11th circuit (a case that the Supreme Court didn’t even take). It says adjourned for long and short recesses.

jd3181 on January 7, 2012 at 7:40 PM

The Senate “adjourns”, formally, at the end of every day’s business.

My G-d, man! Stop. Just stop.

ThePrimordialOrderedPair on January 7, 2012 at 7:56 PM

jd3181 on January 7, 2012 at 7:40 PM

To spell it out for you. The Senate formally adjourns at the end of every business day. It usually adjourns to the next morning or to Monday morning. It is not in recess at each of these times it is adjourned. The Senate is only “in recess” when it is adjourned for upwards of 3 days, which it has to get approval from the House to do as per the silly old Constitution thingy.

You want to claim that the Senate is in recess every single night … Reductio Ad Absurdum is used as proof as against something, not as the basis of your supporting argument.

ThePrimordialOrderedPair on January 7, 2012 at 8:12 PM

Broke his oath. House should start impeachment on Monday.

kara26 on January 7, 2012 at 8:20 PM

jd3181 on January 7, 2012 at 6:43 PM

Good luck with that, as I said. All of the precedent, tradition, and history is against you.

Not good for you. Hell, even Obama’s own administration argued against your position before the Supreme Court.

Resist We Much on January 7, 2012 at 8:21 PM

You are free to argue that a 3 day appointment is invalid, whereas a 4 day one is valid. The problem is that nothing in the Constitution or any judicial decision supports your argument. In fact, the most recent judicial decision on the issue went out if its way to say it was NOT declaring any such 3 day limit.

The Constitution talks about a minimum day requirement for required House consent. That minimum day requirement is clearly not in the recess appointment clause, or anywhere in article 2. This does not mean a 3 or 1 day recess is sufficient — it just means that the question is unanswered. If there is a constraint (as I believe there should be), it may very well involve the Constitutional quorum requirement.

jd3181 on January 7, 2012 at 9:18 PM

jd3181 on January 7, 2012 at 9:18 PM

Well, what will happen is this:

If the Republicans win the Senate in November and they very well could considering they are only defending 10 seats and Democrats are defending 23 and the GOP only needs 4 to retake the chamber, then the Senate will be kept in session 24/7/365…if Obama is reelected.

Obama has poisoned the well and this decision will haunt him. Second terms are notoriously bad. Unlike FDR, who actually added to his coalition in his first term, Obama will be facing the typical (or worse) 2nd term with a poisonous relationship with a Congress that could very well be in Republican hands.

On the other hand, if a Republican wins and this precedent sticks, then I suspect you are going to see some wild appointments while the Senate is at lunch, or at a funeral of a colleague or whatever else.

Now, I don’t want to hear any whining from you then.

I am neither a Republican nor a Conservative. I am a libertarian and care more about the rule of law and the Constitution than I do about political parties and politicians. Obama is way out of line here and, if you champion this kind of outrageous behaviour, you deserve whatever wickedness comes your way as a result.

The two Democrats that he appointed to the NLRB were just named on the 15 of December. Neither has submitted their paperwork to the Senate. Neither has been subjected to a criminal background check. Neither has been subjected to a civil background check (conflicts of interest and the like). Neither has submitted their tax returns or been investigated to see if they owe back taxes. Neither has answered a single question of a single Senator pursuant to the Advise & Consent Clause. The Senate was not given time to schedule a single hearing. These are the kinds of people that that will be making decisions that will affect trillions of dollars and millions of workers. They will also create incredible amount of uncertainty because they very legitimacy on the Board will be the issue of numerous lawsuits and we have already seen the Supreme Court’s willingness to throw out hundreds of NLRB decisions in one fell swoop because of little “technicalities” associated with the Board.

I do not cheer the behaviour of politicians, who think that they are above-the-law, who think the Constitution is a political weapon that can be stretch to the limits, or who think that the law can be a toy in which to be use to frivolously to beat their opponents over the head.

We shall see what happens, but I can say this, a lot of us in the profession will make a tonne of money thanks to Mr Obama’s decision to play fast and loose with the Constitution that he was sworn to preserve, protect and defend.

Resist We Much on January 7, 2012 at 10:13 PM

If the Republicans win the Senate in November and they very well could considering they are only defending 10 seats and Democrats are defending 23 and the GOP only needs 4 to retake the chamber, then the Senate will be kept in session 24/7/365…if Obama is reelected.

Resist We Much on January 7, 2012 at 10:13 PM

That wouldn’t work, either. Obama would force an adjournment of Congress and then he would make his recess appointments.

Art II, Sec 4:

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;

They’ll just define “them” as between the Executive and Congress and it’s off to the races! You can’t beat people whose language is totally malleable and unconnected to the world in any way, whatsoever. They think that is the height of enlightenment, the idiots.

ThePrimordialOrderedPair on January 7, 2012 at 10:28 PM

Oops.

Art II, Sec 3

ThePrimordialOrderedPair on January 7, 2012 at 10:28 PM

The United States is NOT a signatory to the Geneva Convention.

We observe its rules, because it’s easier to do so thab bot – but we are not bound by them.
Also, we observe the rules because we hope that our enemies will also observe them in their treatment of our soldiers. (which doesn’t, frankly, seem to be working out so well)

Before you climb on that high horse, you’d better make sure the saddle’s cinched down tight.

Solaratov on January 7, 2012 at 7:40 PM

The U.S. has signed all 4 of the Geneva conventions. All of the treaties have been ratified by at least the 1970′s. I don’t believe we have signed on to the protocols(amendments) though those don’t seem applicable. I recall that we signed #4 in 1949 and ratified it in 1955.

Saddle up?

New_Jersey_Buckeye on January 7, 2012 at 10:40 PM

Resist me much, if a quorum of the Senate wants to actually bother to show up at work every few days, I would be fine if that blocked recess appointments. Something tells me that they would negotiate with the President and actually confirm some people in exchange for no recess appointments, so they could go home.

And I would be perfectly fine with a Republican president making recess appointments when the Senate chooses to take a vacation. That way, people can see how a President governs and vote accordingly (as opposed to one party blocking all appointments for various positions, preventing the President from governing, and then blaming the President for not governing).

Now of course, you, as a libertarian, would probably be fine with no governing and total paralysis. But that is not what the Constitution said. The recess appointment clause exists, it contains no textual time limit at all, and there is no reason to think that any implicit limit that might exist would foreclose a recess appointment during a period of weeks where there wasn’t a quorum.

jd3181 on January 7, 2012 at 10:41 PM

ops.Art II, Sec 3

ThePrimordialOrderedPair on January 7, 2012 at 10:28 PM

“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; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

He can try, but “them” obviously means the House and the Senate. What is he going to do next? Set the Supreme Court’s calendar for the year?

You know, this “Tear Down This Separation of Powers Wall” thingy could work both ways. The House could decide that Obama isn’t “in session,” is playing too much golf and just dock his pay. :-)

Resist We Much on January 7, 2012 at 10:49 PM

“Resist me much, if a quorum of the Senate wants to actually bother to show up at work every few days, I would be fine if that blocked recess appointments. Something tells me that they would negotiate with the President and actually confirm some people in exchange for no recess appointments, so they could go home.”

Under the Separation of Powers Doctrine, the President doesn’t get to decide when the Senate is or is not in Session…except when he calls a special session or the House and the Senate cannot agree to adjourn. If the House wants to deny the Senate the ability to go on an extended recess in an effort to block recess appointments, it is within its rights to do just that. If the Senate wants to deny the President the ability from making recess appointments by using pro forma sessions, then it is within its rights to do just that.

You might not like it, but that is the way it is and I like it. I want the wheels of democracy in this Republic to turn slowly. I wanted Republicans to take back the Congress in 2010 as a restraining order on Obama. If that meant constant gridlock, so be it. Gridlock is better than Obama’s Agenda and most certainly better than tyrannical power plays.

“And I would be perfectly fine with a Republican president making recess appointments when the Senate chooses to take a vacation.”

I don’t like recess appointments, but they are constitutional. I didn’t like it when Obama recess appointed Donald Berwick, but it was constitutional. I do not believe that the Senate is in recess and I believe the law, precedent, and tradition is on my side. If I am correct, then Obama cannot make recess appointments.

“That way, people can see how a President governs and vote accordingly (as opposed to one party blocking all appointments for various positions, preventing the President from governing, and then blaming the President for not governing).”

No thanks. I don’t want to see how a President skirts the law.

“Now of course, you, as a libertarian, would probably be fine with no governing and total paralysis. But that is not what the Constitution said.”

Libertarians are not in favour of “no government.” We are not anarchists. We want limited, constitutional government.

“The recess appointment clause exists, it contains no textual time limit at all, and there is no reason to think that any implicit limit that might exist would foreclose a recess appointment during a period of weeks where there wasn’t a quorum.”

When you review the history of the Recess Appointment Clause/Vacancies Clause, you will learn that the intent of the Founding Fathers was that for the President to be able to make appointments when Congress was out-of-town and not in a position to return quickly to advise and consent to his nominations. That was in the day of no automobiles, trains, or air travel. They chose 3 days because that was the length of time that it took a quorum to return to Washington. Not one of the Founding Fathers believed that a recess was one day or an hour.

You and Obama will regret this action.

Resist We Much on January 7, 2012 at 11:00 PM

Something tells me that they would negotiate with the President and actually confirm some people in exchange for no recess appointments, so they could go home.

jd3181 on January 7, 2012 at 10:41 PM

LOL. Negotiate with the biggest lying sack of sh*t the US has ever sen in the White House, by miles. Big, stupid, flagrant lies. The guy who told secured creditors to suck the paper it was printed on? You kill me. You really do.

ThePrimordialOrderedPair on January 7, 2012 at 11:04 PM

Resist me much, you should learn the history of the clause before you try to explain it. The 3 day custom’s origin is a 1993 justice department memo. It did not exist before that. Theodore Roosevelt appointed 160 people in a recess that lasted about 10 seconds, between gavel bangs.

jd3181 on January 7, 2012 at 11:10 PM

And? Bush’s head of the Office of Legal Counsel disagrees.

http://www.washingtonpost.com/wp-dyn/content/article/2010/10/14/AR2010101405441.html

As Professor Turley said,

“What is clear is that the President has a recess appointment power and the question is whether there is truly an implied period after which this power may be constitutionally used. That is a difficult question given the ambiguity of the text.”

Perhaps the difficulty of the question is precisely why so many Constitutional scholars disagree on the question, and why such disagreements (on both sides) cross party lines.

jd3181 on January 7, 2012 at 11:56 PM

According to the David B Rivkin, Jr. and Lee A Casey in their op-ed in the Wall Street Journal on 6 January 2012, the “traditional test, as articulated in a 1989 published opinion by the Justice Department’s own constitutional experts in the Office of Legal Counsel, is whether the adjournment of the Senate is of ‘such duration that the Senate could not receive communications from the President or participate as a body in making appointments.’” Today’s Senate, which is controlled by the president’s own party, is fully capable of performing both functions in accordance with its rules. Indeed, the Senate is so much in session that on Dec. 23—three days after beginning its pro forma session—it passed President Obama’s current highest legislative priority: a two-month payroll tax holiday, which the president promptly signed.”

http://online.wsj.com/article/SB10001424052970203471004577142540864703780.html

Resist We Much on January 8, 2012 at 12:00 AM

jd3181 on January 7, 2012 at 11:56 PM

And,

Attorney General Ed Meese disagrees.

Dave Rivkin, formerly of Justice, disagrees.

Lee Casey, formerly of Justice, disagrees.

Andrew McCarthy, formerly of the US Attorney’s Office in Manhattan disagrees.

Lis Weihl, Democratic Counsel during the Clinton impeachment hearings, disagrees.

Janet Reno disagreed.

Barack Obama disagreed.

Neal Katyal disagreed before the Supreme Court.

Elena Kagan disagreed when she was Solicitor General of the United States and before she became a Justice on the Supreme Court.

Richard Epstein, Constitutional Law Professor at the University of Chicago School of Law, disagrees.

The Congressional Research Service disagrees.

The Office of Legal Counsel in 1989 disagreed.

All 43 Presidents of the United States of America before President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, disagreed.

Resist We Much on January 8, 2012 at 12:07 AM

Resist me much, you should learn the history of the clause before you try to explain it. The 3 day custom’s origin is a 1993 justice department memo. It did not exist before that. Theodore Roosevelt appointed 160 people in a recess that lasted about 10 seconds, between gavel bangs.

jd3181 on January 7, 2012 at 11:10 PM

I have researched the origins and intent of the recess clause. Why don’t you go read the minutes from the Constitutional Convention?

You forget that Congress was a part-time endeavour and transportation was limited. Do you really think that the Founding Fathers meant for a recess to be 10 seconds so that George Washington could recess appoint a whackjob as the Chief Justice of the United States Supreme Court? No, they drafted the recess clause so that the President could staff the government in their lengthy absences. It is the same reason that they allowed the President to repel invasions and insurrections, but retained the right to declare or authorise (an actual declaration of war is not necessary. If you read the minutes from 17 August 1789, you will understand why and what their intent was) war for themselves.

I don’t think that Teddy Roosevelt is any kind of role model that I would want to emulate.

I have to go, but have a nice evening.

Resist We Much on January 8, 2012 at 12:18 AM

It is funny how so many people on your list seem to love citing the 1989 OLC opinion on the 3-day rule (as their only authority), while omitting that Bush’s own OLC head’s opinion is that pro forma sessions do not break up long recesses for the purposes of applying the 3-day rule.

Many people on your list have never expressed an opinion on the Constitutional issue here, and many others have merely cited the existence of the previous OLC memo (rather than endorsed it). As for the few that actually claim what you say they claim, many do not surprise me in the least. For example, you can color me unsurprised that two people who believe Social Security and Medicare to be unconstitutional (McCarthy and Epstein) also believe that this is unconstitutional.

jd3181 on January 8, 2012 at 12:48 AM

It is funny how so many people on your list seem to love citing the 1989 OLC opinion on the 3-day rule (as their only authority), while omitting that Bush’s own OLC head’s opinion is that pro forma sessions do not break up long recesses for the purposes of applying the 3-day rule.

jd3181 on January 8, 2012 at 12:48 AM

LOL. We just had a totally un-American, un-Constitutional, evil health care takeover shoved down our throats on the technicalities of a shell bill being totally refilled with a Senate intermediate health scare bill (merely to have kept it moving along the process) suddenly pushed to passage in the House (flirting with the further offensive and repulsive DemonPass crime – which the dems finally backed off from) because Scott Brown became the 40th filibuster vote in the Senate, and further rammed through econciliation illegally … and you think that arguing that pro-forma Senate sessions don’t qualify to break up an adjournment and keep it under a recess? Have you no shame? Are you intellectually incapable of seeing how utterly insane this is? Sheesh.

And, of course, this is the same Precedent who proudly proclaimed, after a thorough raping of the American electorate with that criminal lame-duck session,

“I think it’s fair to say that this has been the most productive post-election period we’ve had in decades,”

More than fair. But, post-election periods … lame duck sessions, are NOT supposed to be productive, at all. What law school did this joker go to? Someone tell me, because it could not have been accredited.

ThePrimordialOrderedPair on January 8, 2012 at 1:04 AM

It is funny how so many people on your list seem to love citing the 1989 OLC opinion on the 3-day rule (as their only authority), while omitting that Bush’s own OLC head’s opinion is that pro forma sessions do not break up long recesses for the purposes of applying the 3-day rule.

There can be NO “long” recess without the consent of and formal resolution from the other chamber. In the instant case, the House never passed a concurrent resolution consenting to a “long” recess for the Senate before it left for Christmas, which is why it has been holding pro forma sessions.

If you have a link for the concurrent resolution, then produce it.

Many people on my list have, in fact, weighed in on the constitutionality or possible unconstitutionality of such recess appointments. I have given you the link to my website where all of the links to the documents supporting the positions of those that I named can be located.

Only 1 Democratic Senator has been willing to go on the record to say that the Senate is on recess. Only one.

Goodnight.

Resist We Much on January 8, 2012 at 1:07 AM

Resist we much, the Constitution requires House consent for a long adjournments. Not recess appointments. As much as you try to conflate the two, they are not the same. A several-weeks long period of a Constitutional inability to conduct business (due to the lack of a Constitutionally-required quorum) is a period in which recess appointments can be made — according to Bush’s own OLC head.

You can disagree with this, but to then cite another OLC opinion to back up your point (ignoring the one that disagrees with you) is quite silly.

jd3181 on January 8, 2012 at 1:25 AM

“vacancies that may happen during recess” nothing ambiguous there, the vacancy must occur within that specific referenced time-frame, not just exist when a recess is in force. Note that the “commisions which shall expire at the end of their next session”. This would cause recess-appointments in perpetuity if the current understanding, that has been in use for however long now, is valid. I believe it has been incorrect.

In my view, the appointment ends at the end of the next session, which would be WITHIN the session, not after. The vacancy would not occur during recess. There can be no appointment. The COMMON SENSE ideal here is that the appointee would be nominated and go thru at the next session, therefore no lapse would occur at next recess, since confirmation would have been done (political bs aside). The transportation factor has already been brought up.

We abide by a piece of paper through trust and adherence to structure and rule of law. I would agree an Amendment is necessary as there is no ultimate power to resolve it; the courts are just another opinion (with no power mind you). I hesistate to want Congress write an amendment since they do not think through anything anymore (2k pages bills, seriously?) but this might be the easiest thing they can do. Time to check the Executive Powers and make Congress do something useful.

John Kettlewell on January 8, 2012 at 1:29 AM

Forgot to mention, there are only 2 realities: In Session, In Recess.

Adjourning has to be relevent, but at the same time irrelevent. It only ends the work-time…until whenever.

John Kettlewell on January 8, 2012 at 1:34 AM

ThePrimordialOrderedPair, every single one of your supposed procedural outrages has been used by Republicans on many occasions. Every single one.

The shell bill has been used for decades by both parties, to comply with the revenue bill origination clause.

Republicans used “Deem and pass” to pass scores of debt ceiling increases from 1995-2006.

Reconciliation was used to add 4 trillion of debt over 10 years (via the Bush tax cuts), creating most of the medium term deficit problem we have today.

Republicans waited until the lame duck session to IMPEACH BILL CLINTON.

And yes, I agree with Bush’s former OLC head that pro forma sessions (where the Constitutionally-required quorum to conduct business is not present) do not restart the clock.

jd3181 on January 8, 2012 at 1:41 AM

jd3181 on January 8, 2012 at 1:41 AM

The Republicans are not claiming that pro-forma sessions are invalid with respect to “recess”, Einstein. Your Indonesian and his junta are the idiots claiming that. They are the ones I cited in their latest actions. The party of “It depends on what the definition of ‘is’ is” doesn’t think that pro-forma Senate sessions count for anything. That argument is beyond idiotic and an offense to the intellect.

ThePrimordialOrderedPair on January 8, 2012 at 2:00 AM

Bush’s OLC head claims precisely what you say he does not claim.

http://www.washingtonpost.com/wp-dyn/content/article/2010/10/14/AR2010101405441.html

jd3181 on January 8, 2012 at 2:04 AM

jd3181 on January 8, 2012 at 2:04 AM

I say “the Republicans” and you pull out “a Republican”. Huh?

ThePrimordialOrderedPair on January 8, 2012 at 2:07 AM

I pull out the Republican who lead the office in Bush’s government that was responsible for advising the President over its interpretation of the executive’s power under the law, who wrote a well-reasoned opinion backing up the idea full of historical support.

Of course, you are free to disagree with Bush’s OLC head. But to call his well-reasoned argument “beyond idiotic” and “an offense to the intellect” is a bit much. I certainly am not calling the contrary view “an offense to the intellect,” because the text of the Constitution does not answer this question at all (as many opponents of Obama’s move admit).

jd3181 on January 8, 2012 at 2:20 AM

Of course, you are free to disagree with Bush’s OLC head. But to call his well-reasoned argument “beyond idiotic” and “an offense to the intellect” is a bit much.

jd3181 on January 8, 2012 at 2:20 AM

No, it isn’t. A pro-forma session is much more than a technicality, and in a city where technicalities the size of quarks are used to support gigantic frameworks of law, to even make the claim of pro-forma sessions not being real sessions is “beyond idiotic” and “an offense to the intellect”. So, I guess the White House dictator could have just made his picks during the pro-forma session and he would have been perfectly within the Constitution? It’s pathetically stupid. Even you must understand that.

ThePrimordialOrderedPair on January 8, 2012 at 2:27 AM

A President making a recess appointment during a pro-forma session would be a harder question, because then the President would be disagreeing with the Senate over whether there was a recess at the time of the appointment.

But here, there is no such disagreement. Both the Senate and the President agree that the Senate was in recess at the time of the appointment; in fact, the Senate used the same language to adjourn as it has used for past adjournments of several weeks.

The only disagreement is over whether the recess in question is de minimus as far as the recess appointment power is concerned. That is not a question over Senate rules or terms — it is solely a question of the scope of the President’s power.

You argue that the “de minimus” determination can only be a function of length, and the minimum is (magically) 4 days. Bush’s former OLC head argues that the “de minimus” determination can also be a function of how long it has been since the Senate could Constitutionally advise and consent (i.e., how long has it been without a quorum), and backs up his opinion with scores of historical references going back to the Federalist papers.

Nothing in the Constitution itself favors your interpretation or Bush’s OLC head’s interpretation. Neither interpretation is “beyond idiotic.” If you tried to argue in court that Bush’s OLC head’s interpretation is “an offense to the intellect,” you would be laughed out of the room. The fact that you would even make such a claim only betrays your lack of knowledge about the relevant legal issues (and two centuries of executive and judicial thoughts on the matter).

jd3181 on January 8, 2012 at 3:11 AM

They can write anything they wish, have anyone they wish to say what a hero he is, but point of fact: This is just one more violation of the Constitution and Obama’s abuse of his position as President. Mr. President, you are a lair, a traitor, and an insult to the American People.

old war horse on January 8, 2012 at 8:37 AM

“Bush’s former OLC head” also said that no business gets done during pro forma sessions. Perhaps, jd and “Bush’s former OLC head” want to explain what all of this was if it wasn’t business:

http://www.gpo.gov/fdsys/pkg/CREC-2011-12-23/pdf/CREC-2011-12-23-senate.pdf

And, since it wasn’t “business,” we can rest assured that jd will give back his payroll tax extension because the Senate passed that in a pro forma session.

It’s funny. JD can cites Bush’s former OLC head like he was a god. I doubt he agreed with the guy during the Bush administration.

JD, you can continue to cite “Bush’s former OLC head,” but the overwhelming amount of precedent, history, custom, and current legal commentary is not on your side.

One has to wonder why only ONE Democratic Senator out of 51 has been willing to go on the record and support Obama’s position that the Senate is in “recess.”

Resist We Much on January 8, 2012 at 9:06 AM

“To me, the threat to eliminate the filibuster on judicial nominations was just one more example of the Republicans changing the rules in the middle of the game.”

- Barack Obama, The Audacity of Hope, 2006

Just more hypocrisy from President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it.

Resist We Much on January 8, 2012 at 9:23 AM

We can’t wait for the seething, angry Congress to return soon. They have plenty of tools to reverse the illegal appointments, including the checkbook, regardless of what Obama declares.

Amazingoly on January 8, 2012 at 9:26 AM

We are way past the discussion stage on this issue. Who’s gonna sue the tyrant to try and get this decided in a court? Looks as if the framers left us up to the mercy of those in power and the only recourse we have is to wait for the next election. If Ocare is deemed unconstitutional by the SC in March, does this eliminate the whole NCPA and Cordray or will that part be left intact?

Kissmygrits on January 8, 2012 at 9:37 AM

http://www.washingtonpost.com/wp-dyn/content/article/2010/10/14/AR2010101405441.html

What does Elwood, the co-author of the WP op-ed, have to say on the issue?

Ordinarily, when Congress goes out for recess, the two houses pass a concurrent resolution. They have to do that because Article I, Section 5, Clause 4 says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .” I hear that the House of Representatives didn’t consent to a recess, and in poking around the Congressional Record, I haven’t located any concurrent resolution for this recess.

This is relevant because the two houses have used pro forma sessions for some time (at least during the post-WWII period) to be in session as a formal matter to avoid running afoul of that three-day rule. I don’t know that the Administration would be willing to say that the Senate’s pro formas aren’t valid for purposes of keeping the Senate from violating Art. I, section 5, so this case may present the question whether the pro formas are valid for internal congressional purposes but not for purposes of preventing the President from making recess appointments. In any event, the outcome under the very functionalist view of the Recess Appointments Clause I’ve outlined above may not be affected because there’s little question that the Senate is not available to pass on appointments during this time. But it’s an interesting wrinkle, to say the least. Hopefully, this is a subject that will be discussed in the eventual OLC opinion.”

Elwood doesn’t sound as certain as he did in 2010 in light of the fact that the House failed to consent to a longer recess for the Senate and pass a resolution. Under Article I, Section 5, the Senate IS in session.

Resist We Much on January 8, 2012 at 10:03 AM

The Senate Journal almost always says “adjourned.”

jd3181 on January 7, 2012 at 7:40 PM

“Almost Always”, Gracie?

Del Dolemonte on January 8, 2012 at 10:37 AM

correct me if Im wrong but it seems to me that the argument here for the “recess appointments” is anytime

(where the Constitutionally-required quorum to conduct business is not present)
an appointment can be made…

.. so every weekend when a majority of the congress is in their home state or lounging around in whatever resort they lounge in they are unable to conduct business. therefore every weekend the president can appoint whoever he wants.. if that was the purpose why was the approval process even given to the senate that makes no sense. I just cant imagine anyone saying “ok the senate will approve appointees but anytime the senate doesnt have quorum to conduct business no matter how short or for what reason you can go ahead and appoint until the end of the same session we are in…”

CaptainObvious on January 8, 2012 at 10:46 AM

Bush’s OLC head claims precisely what you say he does not claim.

http://www.washingtonpost.com/wp-dyn/content/article/2010/10/14/AR2010101405441.html

jd3181 on January 8, 2012 at 2:04 AM

LOL, that’s an Opinion Piece from October 2010 from a newspaper that endorsed O’bama and as we speak is desperately spinning this issue on his behalf. If you can post an opinion piece from these same two dudes that was written this week, wouldn’t that be more timely? Have they checked in on this new case?

And I find it hilarious that a Leftist would try to use an Evil Bush Administration official to try and make one’s point, especially after so many of you called Bush and his Administration (especially his DOJ) “criminals” for 8 years.

As I said last night before I left to watch the football game, it was one single O’bama DOJ “Lawyer” who used her own “interpretation” of the Constitution to decide that the Senate was in fact In Recess. I will post the details shortly.

Del Dolemonte on January 8, 2012 at 10:49 AM

why would they even say recess in that case. why wouldnt they just say anytime the congress doesnt have quorum…

CaptainObvious on January 8, 2012 at 10:51 AM

“ok the senate will approve appointees but anytime the senate doesnt have quorum to conduct business no matter how short or for what reason you can go ahead and appoint until the end of the same session we are in…”

CaptainObvious on January 8, 2012 at 10:46 AM

Even better, it’s until the end of the NEXT session. Evidently, to the fevered mind of a lib, Barky can make recess appointments the minute the Senate adjourns after its first day of business for a new session and that appointment will hold until the end of the NEXT Senate session. And we all know that the “session” being referred to is not the act of just meeting for the day, but the year long “session”, though the libs will change their interpretation of that when it suits them, no doubt.

ThePrimordialOrderedPair on January 8, 2012 at 10:54 AM

unprecedented

un·prec·e·dent·ed

Having no previous example

having no precedent; unparalleled

From the January 4th New York Times:

By CHARLIE SAVAGE

5:41 p.m. | Updated President Obama’s decision on Wednesday to grant recess appointments to four officials — even though the Senate contends that it is not in recess — was an unprecedented legal step that brought into sharper focus a recent bipartisan struggle over presidential power.

In early 2007, shortly after Democrats took control of the Senate, President George W. Bush made several recess appointments. But in November 2007, Senate Democrats did not formally recess before going home for Thanksgiving. Instead, they stayed in “pro forma” session, sending a member into the chamber every three days to bang the gavel.

Senate Democrats repeated the move during breaks for the rest of Mr. Bush’s presidency, and Mr. Bush did not try to make any further recess appointments. Under President Obama, Republicans – despite being a minority in the Senate — turned the tables by also keeping the chamber in pro forma session.

So even the O’bama Fluffers at the New York Times admit that no President had ever dared to do this before.

From later in the same article, we hit Gold:

“Can the Senate, through form, render a constitutional power of the executive obsolete?” Kathryn Ruemmler, Mr. Obama’s White House Counsel, said in an interview. “Our view is that the answer to that question is clearly no.”

Translated: “Since We Won, we get to “interpret” the actual meaning of the Constitution. Not the Opposition Party”

The question of whether Congress can block a president from making recess appointments by staying in pro forma session turns on what counts as a recess — and who gets to decide, legal specialists say.

Under a “formalist” view, the Senate is in session whenever it says it is in session – even if the chamber is empty most of the time and all the senators are in their home states. If that view is correct, then Mr. Obama’s appointments on Wednesday were constitutionally invalid.

Under a “functional” view, the Senate is in recess if its members are unavailable to perform the tasks the Constitution assigns to them – like deciding whether to consent to the appointment of a presidential nominee.

The administration’s legal team has adopted the second view – thereby freeing Mr. Obama to make the recess appointments. But several legal questions were raised by the move.

For example, under longstanding practice, presidents have not made recess appointments when Congress has been out of town for fewer than 10 days. The limit prevents presidents from using a brief period in which senators are not conducting business – such as a long weekend — to circumvent the confirmation process.

Part of the Senate’s “pro forma” session tactic has been to send a member into the chamber every three days to bang the gavel, ostensibly breaking up lengthy recesses into a series of three-day ones. In his statement attacking Mr. Obama’s move, Mr. McConnell centered his criticism on the premise that the White House had broken with that limit.

“This recess appointment represents a sharp departure from a long-standing precedent that has limited the president to recess appointments only when the Senate is in a recess of 10 days or longer,” he said.

Ms. Ruemmler, however, argued that sending a senator into the chamber every three days was not meaningful because the Senate had made clear that it was not conducting any business during those brief appearances. In reality, she contended, the Senate is on recess for several weeks, a break that will end when its members return to Washington later this month.

“The president has recess authority under the Constitution so he can continue to fulfill his constitutional function — which is to run the government — when the Senate is unavailable to fulfill its function,” Ms. Ruemmler said, “and it currently is unavailable despite the fact that it is in a ‘pro forma’ session’ for 30 seconds every three days.”

Translated: “We Won, so We get to Interpret the Constitution”.

Ms. Ruemmler declined to say whether the Justice Department’s Office of Legal Counsel had produced a memorandum saying that it was valid for Mr. Obama to make the recess appointments. The Office of Legal Counsel considered the question of pro forma sessions and recess appointments late in the Bush administration, but did not make public any conclusions.

Translated: “We’re Keeping It A Secret”. So much for this “Administration’s” “promise” to be transparent.

BTW, the NYT also quotes those two Bush Dudes you cited from 2010.

However, they also, unlike the WaPo, provide an opposing view, from another Bush Dude:

Todd Gaziano, who worked in the office under several presidents two decades ago and is now director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation, called the move “a tyrannical abuse of power” and “quite shocking” in a blog entry on Wednesday.

Arguing that the Senate is not in recess, Mr. Gaziano focused on a clause in the Constitution that says neither house in Congress may adjourn for more than three days without the consent of the other house. He notes that the Republican-led House of Representatives did not consent to a lengthier recess for the Democratic-led Senate, and offers a view of the formalist position.

“It does not matter a wit that most members of Congress are not in town voting on legislation, because ending a session of Congress requires the passage of a formal resolution, which never occurred,” Mr. Gaziano wrote.

http://thecaucus.blogs.nytimes.com/2012/01/04/obama-tempts-fight-over-recess-appointments/

Del Dolemonte on January 8, 2012 at 11:09 AM

Del Dolemonte, I have never said there isn’t an opposing view. In fact, I specifically said that the opposing view is not “beyond idiotic” and not “an insult to the intellect,” given the ambiguity of the text. I merely said that if there is a non-textual, implicit “3-day rule” for recess appointments, there is nothing in the Constitution that would prevent such a rule from being informed by the quorum requirement for advice and consent, and the history and structure lead precisely to this result.

If you are correct that it takes a concurring resolution of the House and Senate to enable the recess appointment clause, then all of Teddy Roosevelt’s 160 recess appointments made without such a concurring resolution would be invalid.

(Gaziano happens to be unambiguously wrong in his implication that it takes a formal resolution to end a session of Congress, or that it takes the end of a session of Congress to allow a recess appointment. Intra-session recess appointments have been made by every President since the early twentieth century, and in any case the first session of the 112th Congress ended on January 3rd at noon without any formal resolution indicating such. In fact, the Constitution requires that a new session begin on Jan 3rd at noon every year.)

jd3181 on January 8, 2012 at 11:55 AM

jd3181 on January 8, 2012 at 11:55 AM

Oy. The recess appointment power was, obviously, an emergency power given to the President. It was not, as you are basing your argument on, given as a weapon in the arsenal of the President, since the Senate clearly has the power to never go into recess. If this power were meant as an offensive weapon for the Executive to use against the Senate in order to keep them out of recess, then the Executive would not have been given THAT EXPLICIT POWER also, which is done in Art II, Sec 3:

he may, on extraordinary Occasions, convene both Houses, or either of them

Don’t you ever contemplate how ridiculous your argument is when it is viewed in a Constitutional context any larger than one phrase? You make all sorts of assumptions, happily, about individual words, but you don’t even examine the power you claim, itself, as it is addressed elsewhere in the same Constitution. I guess consistency isn’t big in your book …

ThePrimordialOrderedPair on January 8, 2012 at 12:20 PM

The recess appointment power was not meant to be used to keep the Senate in session. It was meant to allow the President to make appointments when the Senate was on vacation.

If the Senate wants to block that, it can do so in a way consistent with the Constitution by not going on vacation, and being available to advise and consent. But no one is forcing the Senate to do so. Just because a provision of the Constitution can have a collateral effect that can be achieved with another provision does not mean that provision must be interpreted in such a way that would prohibit that collateral effect.

If you believe otherwise, your own argument is undermined. The Senate already had the power to allow the President to fill temporary vacancies, by insisting that such a provision appear in the law creating the position. (For example, the vacancies act allows the President to temporarily fill scores of positions even without a recess appointment.) If the recess appointment clause was supposed to be voluntary, only available to the President at the whim of the Senate, the entire clause would have been mostly redundant. Rather than existing to ensure the proper functioning of government when the Senate goes on vacation (as all the history indicates), it would become merely a way for the Senate to more conveniently abdicate its responsibility to be available for advice and consent — a power they ALREADY HAD when creating the position.

jd3181 on January 8, 2012 at 12:54 PM

If the Senate wants to block that, it can do so in a way consistent with the Constitution by not going on vacation, and being available to advise and consent.

The Senate cannot block it. They are UNABLE to block it, which is what I said. The President can convene the Senate at his whim (by lefty standards, as everything calls for “extraordinary” moves) in the very next article.

ThePrimordialOrderedPair on January 8, 2012 at 1:08 PM

But the President CANNOT force the Senate to confirm any of his nominations – which is what you are really driving at.

ThePrimordialOrderedPair on January 8, 2012 at 1:09 PM

“Each House may determine the rules of its proceedings…” (Art. I, Sec 5)

Except that the other House must formally consent by resolution to a recess of more than 3 days.

“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.” (Art. I, Sec. 5).

All orders, resolutions, legislation, or concurrences, EXCEPT ON THE QUESTION OF ADJOURNMENT (hence, it is none of his business nor does he have a say), shall be presented to the President.

“Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.” (Art. I, Sec. 7)

It is quite apparent that the Founding Fathers did not intend to give the President the power to decide the rules for either of the Houses of Congress. There are only two exceptions to this rule. One:

“…he may, on extraordinary Occasions, convene both Houses, or either of them…” (Art. II, Sec.3, Cl. 2).

And, two:

“…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…” (Art. II, Sec. 3, Cl. 2).

It is quite evident that the Founding Fathers did not intend for the President to have plenary powers to dictate to the Congress when they are in recess or in session and to define what constitutes either except in the extraordinary circumstances where he calls a special session or is asked by a deadlocked Congress to mediate an adjournment.

The Founders, in their infinite wisdom, reserved the power to “determine the rules of its proceedings.” The President doesn’t have the power to decide for Congress or one House of same when it is in recess or session. If the Congress or one House decides that pro forma sessions are, indeed, sessions, then the President cannot decide for the Senate otherwise.

JD wrote: “in any case the first session of the 112th Congress ended on January 3rd at noon without any formal resolution indicating such. In fact, the Constitution requires that a new session begin on Jan 3rd at noon every year.)”

But…

“The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, UNLESS THEY SHALL BY LAW APPOINT A DIFFERENT DAY. (20th Amendment, Section 2)

Pursuant to Article I, Section 7, the orders, resolutions, etc., of the Congress regarding adjournments are not subject to the Presentments Clause. They become binding without the President’s signature. Congress can appoint a different day to reconvene and usually does.

Resist We Much on January 8, 2012 at 1:11 PM

But…

“The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, UNLESS THEY SHALL BY LAW APPOINT A DIFFERENT DAY. (20th Amendment, Section 2)

Resist We Much on January 8, 2012 at 1:11 PM

Moot, anyway, in this instance as the 2nd session started at noon on Jan 3rd, 2012. From the Daily Digest for Jan 3rd:

The Senate met in pro forma session to convene the second session of the 112th Congress at 12:01:32 p.m., and adjourned at 12:02:13 p.m. until 11 a.m., on Friday, January 6, 2012.

ThePrimordialOrderedPair on January 8, 2012 at 1:20 PM

Excellent post on the rest, Resist We Much.

ThePrimordialOrderedPair on January 8, 2012 at 1:21 PM

(In my Leftist Lawyer Opinion, Gaziano happens to be unambiguously wrong in his implication that it takes a formal resolution to end a session of Congress, or that it takes the end of a session of Congress to allow a recess appointment. Intra-session recess appointments have been made by every President since the early twentieth century, and in any case the first session of the 112th Congress ended on January 3rd at noon without any formal resolution indicating such. In fact, the Constitution requires that a new session begin on Jan 3rd at noon every year.)

jd3181 on January 8, 2012 at 11:55 AM

Fixed.

Del Dolemonte on January 8, 2012 at 1:24 PM

ThePrimordialOrderedPair on January 8, 2012 at 1:21 PM

Thank you and thanks for posting the Digest for 3 January 2012.

Unfortunately, I am afraid that the whirling dervishes will continue to spin themselves into absurdity nevertheless. :-)

Resist We Much on January 8, 2012 at 1:26 PM

Congress did not pass a law coming up with a different day. Congress did not even pass a resolution coming up with a different day, and even if they did, law means law — not resolution, and no one seriously argues otherwise. The new session started on Jan 3rd, because no enacted law stated otherwise.

As for coming up with a house’s own rules, I never stated otherwise. I specifically said that if the Senate actually claimed not to be in recess on 1/4/2012, this would be a harder question. But the Senate did agree that it was in recess on that day.

The entirely separate question of whether a recess is sufficient to activate the recess appointment clause (once the executive and the Senate agree that the Senate is in recess at the time of the appointment) is solely a question of executive power, and it has nothing to do with Senate rules. The courts end up deciding those questions. Court after court has considered this question on a variety of appointments (and upheld each recess appointment based on a judicial determination that the recess was sufficient). If you were correct, and the sufficiency of a recess to activate the recess appointment power were a Senate question (and not a judicial question), then all of those judicial decisions were wrongly decided.

jd3181 on January 8, 2012 at 1:27 PM

The recess appointment power was not meant to be used to keep the Senate in session. It was meant to allow the President to make appointments when the Senate was on vacation.

jd3181 on January 8, 2012 at 12:54 PM

A Constitutional Cite would be nice…

Article II, Section 2 of the U.S. Constitution, which states, “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.”

No mention of the word “vacation” appears anywhere.

Del Dolemonte on January 8, 2012 at 1:30 PM

But the President CANNOT force the Senate to confirm any of his nominations – which is what you are really driving at.

ThePrimordialOrderedPair on January 8, 2012 at 1:09 PM

The two Democrats that Obama put on the NLRB were only named on 15 December 2011. They have not had criminal background checks. They have not had civil background checks (conflicts of interest, etc.) They have not been investigated to see if they are tax cheats. They haven’t submitted any paperwork (Have they employed an illegal nanny?). They haven’t answered one, single question from even the Senate Democrats because Obama refused to give the Democratic-controlled Senate an opportunity to schedule one hearing.

Leaving aside all of the challenges that will be made by anyone affected by the rulings of the NLRB, just imagine what is going to happen if it should be revealed that either or both are tax cheats, spousal abusers, drunk drivers, etc.? Oh my, is that going to be fun! We already know how well the White House vets its nominees! LOL!

Resist We Much on January 8, 2012 at 1:33 PM

But the Senate did agree that it was in recess on that day.

If so, then why has only ONE Democrat, Tom Carper, affirmed it on the record?

Is your new rule that a recess will count lunches, funerals of colleagues, nights, week-ends, etc.?

Just asking. We want to make sure that we understand them. You guys are great at playing Calvinball.

http://www.bartel.org/calvinball/

If Mitt Romney is elected President in November, can he appoint his entire cabinet by “recess” when he enters the White House for the first time as POTUS on the afternoon of 20 January 2013? After all, the Congress is in recess on Inauguration Day.

A yes or no answer will suffice.

Resist We Much on January 8, 2012 at 1:39 PM

Resist me much, if you actually were to read anything I have written, you would know that I do not subscribe to the “lunch recess” theory. I accept (despite the lack of a textual limit) that there is a distinction between a sufficient recess for a recess appointmet and a de minimus recess. I believe that the sufficiency (or “de minimus”) question is a function of the length of the recess for which the Constitutionally required quorum to conduct business was present.

I have stated this at least five times.

jd3181 on January 8, 2012 at 1:46 PM

The new session started on Jan 3rd, because no enacted law stated otherwise.

OK, so you have now deemed the pro forma sessions that occurred on 23 December 2011 and 3 January 2012 to be “real” sessions of the Senate, but all of the other pro forma sessions to be “phony” sessions of the Senate.

Is that correct?

Since they never went through with it, I suppose Louise would let you use the name, “The Slaughter Rule.”

Since there wasn’t a quorum on the 3rd, are you sure that the Senate is in session? You’ve made a big deal out of quorums.

What will be the minimum amount of time that will be needed to constitute a session? Say it only takes 25 seconds to recite the pledge on 3 January 2013, but 40 seconds to do it on 20 December 2012, is the shorter 2013 session a “session” and the longer 2012 “session” not a session or vice versa or is neither a session or are both sessions or do you not know because you are just trying to COA?

Resist We Much on January 8, 2012 at 1:46 PM

I have stated this at least five times.

jd3181 on January 8, 2012 at 1:46 PM

I have read you, but your distinction is without substantive difference. In order for there to be a sufficiently long period of recess under your theory, you need a concurrent resolution from the House or are you arguing 24 hours is sufficiently long?

The easy thing for you to do to settle this matter would be to produce the concurrent resolution passed by Congress in December proving that they agreed to go into recess for a period of longer than 3 days.

Resist We Much on January 8, 2012 at 1:52 PM

I accept (despite the lack of a textual limit)

jd3181 on January 8, 2012 at 1:46 PM

And you also happily accept this-from my earlier post:

Ms. Ruemmler declined to say whether the Justice Department’s Office of Legal Counsel had produced a memorandum saying that it was valid for Mr. Obama to make the recess appointments.

Remember-even the NY Times admits what O’bama did does not have precedent.

Are you sure you’re not crr6 under a new moniker?

Del Dolemonte on January 8, 2012 at 1:52 PM

If you are correct that it takes a concurring resolution of the House and Senate to enable the recess appointment clause, then all of Teddy Roosevelt’s 160 recess appointments made without such a concurring resolution would be invalid.

Roosevelt made his recess appointments in between the end of the 57th Congress and the beginning of the 58th Congress. The 112th Congress runs from January 2011 until January 2013. Roosevelt made his recess appointment between different Congresses. Obama hasn’t.

Resist We Much on January 8, 2012 at 2:06 PM

Resist We Much on January 8, 2012 at 2:06 PM

Notice how jd3181 couldn’t answer my final question in my 1:52 PM post?

It appears as if your debate with jd3181 is starting to veer into “Holy Grail” territory (apologies if you’re not a Monty Python fan).

It seems that if jd3181 could, they would provide Legal Precedent from prior Presidents for what O’bama and his “Constitutional Lawyers” did on January 4th, namely make Recess Appointments when the validity of the Recess was for all intents and purposes in legalistic limbo. As the NYT story I post above proves, it was in fact one of O’bama’s own “lawyers” who made the “judgement” as to whether or not the Senate was in session that day, in order to “justify” the Leftist ruling her Dear Leader required.

No one here denies that the previous President made Recess Appointments, however the evidence is overwhelming that all of those made were beyond a doubt when there was a Recess. So far jd3181 has been unable to prove that was the case here.

But it is undeniably True that Tribe and all of the other Democrats have instantly and simultaneously pulled a 180 degree turn, all concluding at the exact same time that a practice they all bitterly condemned as “illegal” just a few years ago is now suddenly “legal”.

That alone is what makes this so fun to watch.

Del Dolemonte on January 8, 2012 at 3:49 PM

Resist, the Constitution specifically says that a smaller number than a quorum can adjourn. Since that is all they do during a pro forma session (adjourn), they don’t need a quorum.

As for the concurrent resolution, my entire point is that they dont need one. The Constitution does not require one for recess appointments. They clearly could have added such a requirement if they wanted to. They did not.

Let’s assume there’s a three day rule. I believe that for a recess appointment to be made,

1. The Senate has to be in recess at the time of the appointment.
2. The amount of time without the Constitutionally-required quorum must exceed three days.

You believe that

1. The Senate has to be in recess at the time of the appointment.
2. There must be a concurring resolution indicating a break longer than three days.

There is nothing in the Constitution that declares whether I am right or you are right. Instead, we have to look at the history and structure. There is no history or structure that indicates that a concurrent resolution is required for a recess appointment. Yet there is plenty to indicate that a long lack of quorum (I.e. lack of an ability to advise and consent) suffices. See the Washington post article by Bradburry and Elwood.

jd3181 on January 8, 2012 at 6:53 PM

“See the Washington post article by Bradburry and Elwood.”

See Elwood’s post concerning Article I, Section 5. He doesn’t know whether it affects the pro forma sessions or not. You can continue to cite Bradbury and Elwood, but there are plenty of other people — in fact, there is much more either flat out disapproval or questioning of Obama’s move in legal circles across the spectrum than there is support for it.

“Let’s assume there’s a three day rule. I believe that for a recess appointment to be made,

1. The Senate has to be in recess at the time of the appointment.
2. The amount of time without the Constitutionally-required quorum must exceed three days.”

Yes, the Senate has to be in recess. It could NOT be in recess because of Article I, Section 5. It is like questioning whether a President can run for reelection if he has already served 6 years. If it were determined that he had lied about his age and was not 35 at the point of the inquiry, then the question is moot. It wouldn’t matter how many years he had already served. He would be disqualified from office due to the age requirement. The question would be rather he would be removed from office or not allowed to run for reelection. In your example, the issue of a quorum is irrelevant. If the House has not consented to a Senate recess of longer than 3 days, then the Senate is in session. Period. End of story.

“As for the concurrent resolution, my entire point is that they dont need one. The Constitution does not require one for recess appointments. They clearly could have added such a requirement if they wanted to. They did not.”

It goes to the definition of recess. Again, the Senate cannot be in recess for more than 3 days without a concurrent resolution. It is an IMPOSSIBILITY. It is an automatic trigger. They didn’t need to add it to the requirement for recess appointment because they obviously thought that most people would be smart enough to understand that, if the Senate is forbidden from taking a longer recess than 3 days without the consent of the House and the latter has refused to grant such, then the Senate is in session. So, anyone, not trying to be too cute by half or trying to COA (cover Obama’s a s s), would avoid torturing and pretzelizing the Queen’s English and the Constitution itself in an attempt to make a a square Obama fit into a round hole that the first 43 Presidents of the United States were content to live with while in office.

“Yet there is plenty to indicate that a long lack of quorum (I.e. lack of an ability to advise and consent) suffices. See the Washington post article by Bradburry and Elwood.”

No, you only took part of the 1989 memo upon which Bradbury and Elwood rely. It is not solely the lack of an ability to advise and consent that suffices. If that were the case, then such would make lunch breaks, night recesses, and weekend adjournments sufficient for recess appointments since the Senate is not in session to advise and consent. The other element of the test enunciated back then was that the Senate could not receive communications from the President. Obviously, that is not the case. Members of the Senate are in contact with the president at any time that he seeks their advice.

Resist We Much on January 8, 2012 at 7:28 PM

Del Dolemonte on January 8, 2012 at 3:49 PM

Del, Tribe knows that he has a dog of an argument. The idea that the President has the power to make recess appointments when the Senate is in pro forma sessions FOR THE SOLE REASON TO PREVENT HIM FROM DOING SO and that the Constitution gives him the authority to do whatever need be to “faithfully execute the law” is just a joke. For starters, the argument falls victim to the limiting principle, which is also the affliction of which the Individual Mandate is suffering grievously. You will notice whenever I make silly comments about a Republican President recessing Ann Coulter to the Supreme Court while the Senate is at lunch, I am told (something to the effect) “Well, I think that we should have some limits. Like a quorum or something.” Of course, there wasn’t a quorum on 23 December 2011 and I have yet to hear any of the proponents of Obama’s power grab argue that the payroll tax cuts are phony because they were made in a pro forma session. They want to get to decide what is a session, what isn’t a session. It will…obviously…be a much longer timeframe with more onerous burdens when a Republican is in office.

I would laugh, if I didn’t love the rule of law so much. It reminds me of all of the people, who screamed about Bush’s extraordinary rendition programme, but said nothing when Clinton started it. They screamed over the Patriot Act, but say nothing over NDAA. They yell about “torturing” foreign nationals, who have never stepped foot on American soil and, therefore, are (were) not entitled to constitutional rights, but say nothing when Obama starts assassinating American citizens. At least, I am consistent. I fought Bush when he was in office.

Resist We Much on January 8, 2012 at 7:40 PM

For the thousandth time, the adjournment clause did not prevent the Senate from being in recess on 1/4/2012. That clause only applies to recesses longer than 3 days. The Senate was in recess on 1/4, and it said so.

The only remaining question is whether the unambiguous recess is de minimus. Under Elwood’s functional definition, it was not de minimus. Under your formalistic definition, it was. The Constitutuin does not tell us who is right, on question number 2. But it does absolutely tell is that you are wrong on question number 1, when you say that the Senate could not have been in recess on 1/4.

jd3181 on January 8, 2012 at 8:19 PM

You seem to incorrectly assume that the opposite of a greater than three day recess is NO recess. But that is of course false. A 3 or fewer day recess is not impacted by the adjournment clause, yet it is still most definately a recess. The only question is whether that recess is de minimus.

jd3181 on January 8, 2012 at 8:23 PM

Correct, JD. We are now talking about the less than 3 day recess, which sets the precedent for a future where any recess of any length of time — no matter how short — can be used to make recess appointments. That is the absurdity of the precedent set by President Obama and it was most definitely not the intention of the Founding Fathers. The Founding Fathers would have certainly agreed that, if the Senate decided to stay in session indefinitely for the sole purpose of frustrating the President’s ability to make recess appointments, then the President would indeed be so precluded. They intended for the wheels of democracy to turn slowly and for there to be frustration and gridlock, which would force the parties to work together toward reasoned decisions. You and Obama have upset the apple cart. I hope that you enjoy Justice Rush Limbaugh.

Thank you for finally admitting your absurdity. I’ve been waiting for it.

A fine debate. Good evening.

Resist We Much on January 8, 2012 at 9:29 PM

But it does not necessarily set such a precedent. This particular three day recess was in the middle of a much longer time period for which there was no quorum.

A court could easily find that any-length recess is sufficient, so long as there has not been a quorum for more than three days. This would not create the any of the absurdities that you claim would result. No recess could be made during a weekend or a lunch. The Senate could come to work once every three days and thwart the President. In fact, that is how it has worked since intra-session recess appointments began in the 20s. The only way the Senate thought it could block the White House was by coming to work.

Your entire argument boils down to the argument that the only factor the court can take into account is the length of the recess. But you just assume this without justifying it. Yet my entire argument is that this is false — that the court can look at other factors when creating a generalization that will serve as precedent. Looking at the history, the inability of the Senate to Constitutionally advise and consent (for which a quorum is required) might be far more important than the pure length of a recess.

You are free to argue that recess appointment ability = f(recess on 1/4, length of recess), rather than f(recess on 1/4, length of lack of quorum). But you have not done so yet — you have just assumed it, and concluded that allowing this appointment would allow any recess appointment in a three day recess.

jd3181 on January 8, 2012 at 10:21 PM

While I very much enjoy a good legal debate on the Constitution, can we all not agree on one thing?

The Founders did not intend the power of recess appointments to be used by the President as a way to circumvent the Senate’s advise and consent power, but rather as a tool to genuinely fill executive and judicial positions at a time when the Congress was truly incapable of conducting business in an era when instant communication and one day travel across country were impossible. And furthermore, that the present use of recess appointments is almost solely now used as a political tool to install executive and judical appointments that the President knows the Senate will not confirm.

Presidents on both sides of the aisle have used the recess appointment as a political club for nearly the last 100 years. And it sickens me that a President and Senate will alter their views on it depending on whether their party is abusing the power or not.

I believe the Founders would say the usage of the recess appointment as performed today is not in keeping with their intent, and would be unconstitutional in their view.

Seriously, let’s stop all playing dumb here, like we don’t know what the Founders meant in this case. Because while it is an interesting debate, it is ultimately just a smoke-filled coffeehouse bullsh*t debate. To argue that the recess appointment as presently used by either party is legitimate is what is truly “intellectually dishonest”.

gravityman on January 9, 2012 at 12:24 PM

Gravityman, I think it is a fair point that the founders were clearly operating under assumptions about eighteenth century technology, and that recesses used to be longer.

But the same holds on the abuse of the advice and consent power. I believe both parties have abused the advice and consent power for executive nominees (relative to the conception of the founders). To them, it was much more a check on obvious abuses (such as the President appointing relatives).

But I also believe that Republicans crossed a clear bright line here that the founders would have been appalled at. Republicans have said (explicitly with the CFPB, implicitly with the NLRB and many other positions) that they are blocking all nominees in an attempt to nullify the authority given in the law to people in those positions.

The founders did not expect that the advice and consent power would be used to re-litigate enacted laws every time there was a new Senate. They did not (intentionally at least) give power to the Senate to reject nominees so that they could reject all nominees and hamstring the government.

Given the departure from the founder’s vision on both sides, it is important to look at the principles animating the recess appointment clause. The recess appointment clause was clearly added to ensure the government continued to function in the Senate’s absence. If they were more concerned about a recess appointment that the Senate would have rejected, they could have removed the recess appointment clause altogether. Or they could have said that the recess appointment power could be revoked by the Senate during a recess. They did neither, and the history and structure indicates that the functioning of the government was the paramount consideration here.

This is why I believe a functional approach is much more consistent with the intent of the framers than a formal approach. The relevant question is whether the Senate has the ability to advise and consent. The lack of a quorum prevents that ability under Article 1.

To put it another way, if these recess appointments are unconstitutional, then a Senate 200 years ago could have gone on a typical 9-month recess, with the Senator closest to the capitol conducting pro forma sessions and preventing all recess appointments. This seems to me to clearly contradict the intent of the founders, and the principles that animate the recess appointment clause.

This is why I believe that a minimum length of which there is no quorum is a sufficient limiting principle on the Recess Appointment clause. It allows the Senate to block all recess appointments by merely showing up to work every few days, but it does not allow the Senate to block all recess appointments when they take an extended vacation. This dynamic will result in negotiations, where the Senate will confirm certain nominees (since it wants to go home), and the President will promise to refrain from making recess appointments (since it wants at least some nominees confirmed to full terms).

In fact, this is precisely the dynamic that has been present in most of the last century, so there is little reason to think it will lead to one side getting too much power over the other.

jd3181 on January 9, 2012 at 6:37 PM

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