Thursday, January 5, 2012

Is It a Recess? Who Decides?

I've seen one argument on recess appointments that is worth knocking down right away; it's made by liberal Tim Noah over at TNR, and conservative John Yoo at NR: that Congress, and not the president, get to decide whether or not Congress is in "recess" when it is not actually meeting.

There's simply no Constitutional support for that at all. The clause about recess appointments is in Article II, for whatever that's worth (that is, the article about the president, not the Congress). It just talks about "the Recess of the Senate." That's it. There's no definition at all about what "counts" as a recess, or whose job it is to say what counts.The word "recess" only comes up one other time in the Constitution, in a (now-obsolete) similar clause about state legislatures and U.S. Senate appointments. There's nothing at all about who gets to define recess.

Here's what Yoo says:

President Obama is making a far more sweeping claim. Here, as I understand it, the Senate is not officially in adjournment (they have held “pro forma” meetings, where little to no business occurs, to prevent Obama from making exactly such appointments). So there is no question whether the adjournment has become a constitutional “recess.” Rather, Obama is claiming the right to decide whether a session of Congress is in fact a “real” one based, I suppose, on whether he sees any business going on.
This, in my view, is not up to the president, but the Senate. 

This may be Yoo's position, but it would be a break with precedent. As You knows (since he refers to it in his article), the current three-day minimum standard is derived from a Clinton-era Justice Department opinion. Not the Senate. The Justice Department.

Of course, Yoo and Noah could still be correct that the decision should rest with the Senate. But the Senate has never, as far as I know, made any such determination. There are various minor technical differences between the various times that the Senate is out of session (intersession, between different Congresses, overnight/weekend intrasession, and longer intrasession), but the the Senate generally does not use different vocabulary for them, and certainly does use the word "recess" for the breaks relevant here. The Senate does not, in any official way, announce that they are now in recess for the purpose of the Constitutional appointments clause.

Moreover, and this is why the point I made yesterday is I think relevant: even if it were up to the Senate, we know that the Senate Majority Leader, and presumably the majority of the Senate, support the president's recess appointment. Surely Yoo doesn't believe that the Speaker of the House has a Constitutional role to play in determining whether a recess counts as a "Recess of the Senate"?

Granted, I wouldn't say that it must be a real Recess just because the president and the Majority Leader agree that it is; they could certainly be wrong, either honestly or cynically.

The actual issue here -- how long does a recess of the Senate have to be before it counts as a Recess of the Senate for these purposes -- is legitimately contentious, because we don't really have any guidance for what "recess" means in this context. That's why I'd like to see exactly what the WH is relying on (as Kevin Drum said yesterday). And while I believe I agree with the decision, I think there's plenty of room for legitimate disagreement on substantive grounds. But as far as the procedure, I just don't see it as a problem for the White House to have its own interpretation of a vague Constitutional clause in cases where precedent doesn't apply. There's no reason for the president to defer to Congress on the definition.


  1. To me, the crucial point is this: The President has the enumerated power to make recess appointments; the Senate has the enumerated power to consent to nominees. The House, however, has absolutely no enumerated powers that have to do with Presidential nominees. If there is any power grab going on here, it's by the House, which has invented a Constitutional power to veto Obama's nominees by using its enumerated power to force the Senate to convene.

    This power comes with a specified limitation (3 days), though; while the recess appointment power does not have any specified limitation beyond the Senate being in recess. Of all the powers that people are claiming to have, the one that has the least support in the text of the Constitution is the House's claim to be able to absolutely prevent recess appointments.

  2. "Surely Yoo doesn't believe that the Speaker of the House has a Constitutional role to play in determining whether a recess counts as a "Recess of the Senate"?"

    Presumably this comes from the Constitutional provision that neither house can adjourn for more than three days without the consent of the other. The Senate Republicans requested that the House withhold its consent. That's also the source of the three-day standard for "constitutional relevance" in the Clinton-era DOJ opinion. One problem with that, however, is that the Constitution inserts the phrase "during the Session of Congress," suggesting the standard could be irrelevant between sessions.

    By the way, isn't it rather uncharacteristic for Yoo to permit Congress to decide anything at all?

  3. Yoo has by now clearly laid out his doctrine that the President's powers are unlimited unless he is a Democrat.

  4. Obama should respect the constitution - no recess appointments. If the Senate refuses to give his nominees an up or down vote, he should waterboard the Minority Leader until he capitulates. That wouldn't violate the constitution at all.

  5. I should think the answer to this is obvious.

    Clearly Boehner should sue Obama and let the Supremes decide in a landmark Boehner v. Obama decision.

    Or, or, or! The President gets to appoint. If the Senate thinks it is in session, then it should, you know, convene and vote. If not, the appointment was a recess appointment by virtue of the Senate not voting on it.

  6. The Constitution does permit recess appointments but apparently has no specific provision banning the torture of the minority leader.

  7. Foxed,

    There's plenty of precedent for the Senate being in session but still not voting.

  8. Has anyone pointed out yet that the Senate actually was in session on Tuesday, hours before Obama's 'recess' appointments? They were called to order at 11:01 AM. They engaged in legislative and executive business. They adjourned over an hour later after completing the session's business. You can view the calender entry for their session at

    Thus, any sort of argument regarding time frames is rendered moot. There is no way you can argue an adjournment of several hours is a 'recess'. No way.

    The Senate had a session, engaged in business, adjourned for the day, and Obama made recess appointments. There is no defense of those actions at all.

  9. Conservative Teacher,

    No one has pointed that out yet because (1) there is no mention in the Constitution of when during the recess the appointments are permissible, and (2) the appointments were made on Wednesday, not Tuesday.

    But in fact I do think the fact that the Senate did a bit of business in this session, and also in one of the December sessions, is relevant to the question of whether the overall period is a Constitutionally-qualifying recess.

  10. I wonder if the fact that the administration hasn't been even more aggressive with appointments - like the possibility related to the mortgage re-financing rumor, or numerous judgeships - is significantly explained by their less than 100% certainty that their interpretation will be upheld if tested.

  11. ACT, the Senate adjourned to reconvene 3 days later. Intra-session recess appointments are absolutely not new; every recent President has made them. Making a recess appointment 3 days before the Senate is scheduled to return is not new; Bush did it in 2004. What is (relatively) new is making a recess appointment during a recess that is only 3 days long; previously, recess appointments have only been made when the Senate has been in adjournment for at least 13 days. But under what logic is there "no way to argue" that 3 days is too little, but 13 days is enough? Certainly not any logic that can be found in the Constitution, even its penumbras.

  12. Didn't a bunch of Republicans in Congress just freak out a couple of days ago because O announced he was going to raise the debt limit, and they were in recess, so they wouldn't get to properly demagogue the raising of the debt limit?
    Also, I am laughing because thanks to some of the above comments, I am imagining John Yoo's response on whether the prez can crush the minority leader's testicles when he engages in extra Constitutional actions like filibusters (it depends...).

  13. Flounder - good point! And it reminds me...I suppose I should really write a post for it, but for now I'll stick it down here: anyone who finds an instance of Republicans calling the current period "recess" will receive a fabulous Plain Blog "Catch of the Day." If I get multiple ones, it'll be shared. Good luck!

  14. How hard could it be? From Olympia Snowe's own Senate website, Dec. 20, 2011:

    "I frankly believe that Congress should forfeit its recess while uncertainty persists about extending unemployment benefits and the payroll tax cut,” continued Senator Snowe, who is Ranking Member of Senate Committee on Small Business and Entrepreneurship.

    I predict there will be multiple ones.

  15. Conservative Teacher: None of those items listed on the Legislative and Executive calendars required any action by the Senate. The Legislative Business was a message to the House that was queued pursuant to what happened on 12/23/11. The Secretary's staff was simply indicating that it had sent the message on the next available Legislative calendar day.

    Similarly, pursuant to Senate rules, any Presidential nominations left pending on the Executive calendar are returned to the President at the end of a session. Again, the rules require the Secretary to take this action, and the entries you are simply the records that the Secretary's staff did so.

    To see what the Senate actually did on 1/3/2012, take a look at the Congressional Record. Since there were actually two sessions on Tuesday - the last of the first session and the beginning of the second session - there are two Congressional Records for the day:

    In sort, the Senate did nothing interesting on 1/3/2012 except for opening the second session of the 112th Congress and then immediately adjourning.


  16. vvk--The Senate did nothing interesting except for opening the second session, which is the act that allows Chordray to serve until the end of the session. So the only thing they did had legal effect, but they didn't do anything. I'm trying to work with you here, but you are making it very difficult.

  17. Jonathan, here's a good one from July, when the Senate also took a holiday break and claimed they were in "pro forma session". Jeff Sessions (R-KKK) talks to a Fox talking-head and doesn't dispute her recess terminology (and the word is plastered all over the screen).

    And here is an editorial from "the editors" of the extremely right-wing magazine National Review claiming that Congress went into recess before Christmas.
    I imagine said "editors" are screeching mightily now about how there was never a recess.

  18. Anon from 1/5/12 @ 10:19 pm: The second session of the Senate for the 112th Congress has been in session for exactly 41 seconds. There has so far been only on Senator in the chamber during the second session - Senator Warner of VA.

  19. Anon@8:06am is right. I think there's an error in the link that ACT posted, because the Congressional Record says the Jan. 3rd session actually began at 12:01pm and the "business" took 41 seconds to complete. It does mention the appointment of the conference committee referred to by ACT's link.

    Also, too, the Congressional Record from the Senate's Dec. 30th session (lasting 32 seconds) says that the next session will be Jan. 3rd at 12pm -- not 11am.

    (There was probably somebody there other than Warner -- I believe that a Republican is always going to be present to raise an objection in case Democrats try to pass something on a voice vote. But nobody made a quorum call, so we don't know who.)

  20. Anon at 8:06--Ok. So, that one 41-second session was simultaneously the beginning of a session with legal effect causing Chordray's appointment to last through 2013, and also not a session but a recess, so that Chordray's appointment is possible. Am I getting that exactly right?

  21. I'm pretty sure if the senate goes into "recess" for one second, that one second is enough to allow an appointment.

    Angels on pins? yes -- but that's what happens when you allow Catholics to serve on the Supreme Court.

    Time for a change. I'd go house of lords of them -- the Senate can delay an appointment for up to a year, but nothing more.

  22. This comment has been removed by the author.

  23. Anon@9:18am: No, you're not. Recess appointments expire at the end of the session -- they don't have to be made after the start of a session, in fact, historically they were only made in between sessions. The appointment could have been made at any point after the end of the last session, which was Dec. 30th if you count pro forma sessions, or Dec. 17th if you don't.

  24. Just thought some of you might find this link useful, came from a blogger friend: Includes some detailed but very succinct historical/legal discussion on the definition of "recess" specifically for appointment purposes. difference between adjournment and recess, other material from 2004 11th Circuit decision on Judge Pryor appointment:

  25. Neil, recess appointments expire at the end of the next session. If Chordray had been appointed inter-session, then his appointment would expire at the end of 2012 (when the 2nd session of the 112th concludes). The Obama administration says that he was appointed intra-session, so that his appointment lasts through the next session (that is, through the 1st session of the 113th). For that to be the case, the Senate must have ended their recess and convened the second session of the 112th. Apparently they met while they were on recess.

  26. Anon from 1/6/12 @ 9:18 AM: You're pointing out something that Senate rules *specifically* tell you to ignore. Senate Rule XVIII is short, so I'll quote it here:


    At the second or any subsequent session of a Congress the legislative business of the Senate which remained undetermined at the close of the next preceding session of that Congress shall be resumed and proceeded with in the same manner as if no adjournment of the Senate had taken place."

    Since the Rule specifically tells you to ignore the fact that the Senate adjourned and then reconvened to start a new session, I think it's fair for me to say the fact that they did so is uninteresting.

  27. Anon 12:34--I'm not sure at all what your point is. Are you saying that Chordray's appointment will last only through the end of the 112th? That would treat his appointment as if no adjournment had taken place. Otherwise, it looks like you're trying to taking a rule on internal Senate business and trying to use it outside of that context. The fact that the Senate convened for a new session is what the Obama administration is relying on when they say that Chordray will serve through 2013. They can't do that if the Senate hasn't in fact convened.

  28. Anon from 1/7/12 @ 605 PM: You're reading something into what I'm writing that isn't there. I've made no statements about when Cordray's appointment would end. I'm addressing the question in the subject of this post: "Is it a Recess?"

    In that context, convening for 41 seconds doesn't strike me as significant enough to interrupt the recess... especially when Rule XVIII seems to tell you to ignore the slight of hand required to start the new session.


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