Friday, August 12, 2011

Recess Appointments: Best Choice?

Michael Tomasky has an excellent column urging Barack Obama to use his Article II powers to adjourn Congress and make some recess appointments.

This raises a question: what's the better approach for beating the House block on recess appointments? Recall that the House has refused to take a proper recess this August, which in turn has forced the Senate to stay in (through the use of pro forma sessions), all of which works because of a Clinton-era DOJ opinion that the Senate must be out for three days to count for the Constitutional definition of a "recess," an opinion which George W. Bush went along with when majority Democrats in the Senate used that tactic in the final two years of his second term. So there are two options: Obama could, as Tomasky suggests, resolve an impasse about the recess in the Senate's favor, which appears to be allowed under Article II. Or, he could just say that the current period is really a month-long recess, pro forma sessions notwithstanding and do an appointment on that basis.

Hmmm...if Obama were really willing to do this, the best path would presumably be to go to Harry Reid and let him choose. No point in further antagonizing the Senate (or at least no point in antagonizing the Democrats in the Senate). If Reid were indifferent, however...I'm not sure which one is better. Probably not much of a difference, as far as I can see.

Either way, it sure seems like a clear winner for Obama to take action against GOP obstruction.


  1. No, the president doesn't have the power to adjourn Congress.

    Nor does the president have the power to unilaterally issue debt.

    The Left is becoming a caricature now, with this nonsense. It is not helpful, and it's hurting them more than anybody. They are not viewed as participating in legitimate process.

    Stop it, please.

  2. Anon,

    So do you think that Article II, "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" is a dead letter? Why?

  3. The first comment was pretty much the definition of concern troll once the line about "hurting them more than anybody" was included.

    Since he/she would pretty obviously like the left to be "hurt" (politically, that is, I assume no further malice), why ask "stop it, please"?

  4. Obama just agreed to a terrible debt limit deal rather than using his arguable 14th amendment or platinum coin minting powers. If he's not going to be innovative in that circumstance, I can't imagine him doing something as radical as declaring Congress to be in recess.

    That being said, the better choice would be to resolve the recess in favor of the Senate. That is more clearly in line with the provision in the Constitution. It still leaves the possibility of using the stronger option at a later point in time.

  5. why exactly should Reid give up on the Senate's power? How does the lack of appointments hurt him or the Senate democrats?

  6. He should definitely have the Senate on board if he can. Have the Senate declare a recess. Wait a couple days and if no one challenges it, great, make your appointments. If the House Reps challenge it, use Article 2. Don't do any politicking, just do it by the books as a formality to adjourn Congress. Even if it's never been done before, it's in the Constitution and the rule's pretty clear, so it's all above board. Let the press babble about the procedural dispute for a few days and then make your appointments. Don't talk about the appointments before that, just say you're resolving a dispute between the House and the Senate, and the Senate can adjourn if they want to.

    Having the Senate involved has a few advantages. You can frame it as the President resolving a dispute between the Senate and House. With the Senate's stupid procedural session, if the President does appointments he's picking a fight with the Senate (at least officially) and inviting imperial presidency attacks; why do that if you don't have to? It also seems to be more legally safe to me to get the Senate on board and go by the book. Finally you also can get the procedural adjournment dispute settled/died down a bit before you make the recess appointments (or is that a bad thing?). The other way, challenging the Senate, has no advantages that I can see.

    Now, there's one more question: What if the Senate (the Reps plus centrists, or just Harry Reid himself) actually insists on staying in session? It would be ridiculous for Democrats to do that, but they've pulled a lot of bs along the same lines. In that case, should Obama declare them in recess anyway and make his appointments?

  7. Mr. Bernstein,

    It's not that I think it's a dead letter... it's that it is a dead letter. If the president had that power... it would have been exercised long before now.

    And in this instance, Obama is currently a dead man walking, and attempting to issue debt unilaterally, or attempting to adjourn Congress, is only going to get him impeached, and remove whatever shred of a chance he has at reelection.

    On top of everything else... you want to get this guy tagged as a totalitarian? THAT'S how you want to approach the 2012 reelection?

    There is nothing positive in this for him or the country... or for you lefties.

    Stop it, please.


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