Wednesday, January 4, 2012



The major breakthrough finally comes: Barack Obama announced in his speech in Ohio today that he was going to recess appoint Richard Cordray to head the new Consumer Financial Protection Bureau, and then later that he would use the same Article II power to fill the vacancies on the National Labor Relations Board.

So here we go. This is, to be sure, uncharted waters. In both directions.

First: Republican obstruction of the normal advise and consent procedures has been, without a doubt, unprecedented. That began with the blanket filibusters against everything in the Senate -- that is, the "60 vote" Senate, which did not exist across the board until January 2009. That extended to Republican "nullification" -- the tactic of prohibiting agencies they don't like for fulfilling their lawful functions by refusing to allow any nominee to come up for a vote. In the case of the NLRB, this actually wound up producing a Republican filibuster of a Republican nominee in order to keep that board (which by statute has both Democratic and Republican appointees) from having a quorum needed to operate.

But that's all about the norms of regular confirmation. What really pushed the rules was (as Congressional scholar Sarah Binder describes) the Republican House's attempt to prevent recess appointment by using pro forma sessions. That's a tactic that was deployed by the Senate Democratic majority near the end of George W. Bush's administration to prevent recess appointments. Whatever it's legitimacy in that case, it's yet another stretch for the House of Representatives, which has no Constitutional role in executive branch nominations, to use Constitutional machinery to block a Senate recess in order to prevent recess appointments.

So that's the real "unprecedented" in this case. Whatever the president decided in order to react to GOP obstruction would have been unprecedented, because we've just never been here before. Remember, until very recently, a party that held the Senate and the White House would simply confirm most nominees speedily, with any opposition at all rare, and filibusters unheard of, until the 1990s. The only significant exceptions were the ends of presidential terms when the Senate was held by the out-party, which of course isn't the case now.

Now, Obama's response. As Binder points out, the problem is that the presidential power here is Constitutionally undefined. The Constitution only says that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate." So what counts as a recess? That's up for grabs, as this CRS report and my somewhat shorter summary of it explained.

Indeed, Obama had three possible responses to the "pro forma session" tactic. He could have used the Teddy Roosevelt trick of using the space between the First Session and the Second Session of the 112th Congress yesterday; he could have used a previously untried Constitutional provision to resolve the dispute about recess in favor of the Senate; or he could, as he did today, choose the argument that the non-recess recess was a sham, and that it was sufficient to trigger the Constitutional authority.

None of the three is firm, precedent-affirmed Constitutional ground, although in my view all three are probably kosher (note in particular that the TR intersession appointments were contested by Congress, although only after it was a moot point, so there's no particular reason to believe that TR style appointments would have been on any firmer ground). For the relevant court cases, see the above-linked CRS report or my explainer, or see Think Progress's Ian Millhiser's argument or Sarah Binder's conclusion. On the other hand, see Steve Smith's comment to Binder's post, and see also Matt Glassman's post. The White House has issued a statement, but it's mostly boilerplate, and so far they haven't released (at least that I've seen) a full legal opinion on the matter, which would presumably clarify and (for pro forma sessions) override a Clinton-era opinion that interpreted the Constitutional requirement as a three-day minimum. Basically, however, it appears that they are arguing that any pro forma sessions would be insufficient to prevent a Constitutional "recess." That doesn't sit well with Smith and Glassman, who both argue that it's up to Congress to decide what to do when they're in session, which they plainly are during those pro forma meetings. That's a strong argument, and might even win in court, but I disagree, as do Bush-era DOJ lawyers, although I certainly agree with Kevin Drum that we'll have to see the legal opinion the WH is working from. One key point to me: the Senate Majority Leader agrees with the president's decision. After all, if the majority of the Senate (as voiced by its Leader) agrees that the Senate is in a Constitutionally-qualifying recess, it's a lot harder to argue that the president is unilaterally changing the rules.

I don't agree, then, with Tim Noah, who finds no justification for the action, and argues that this would open up the possibility of appointments during normal weekend recesses (or while he doesn't mention it, recess appointments when the Senate recesses overnight). The key is that the White House isn't saying anything about the three-day minimum; they're just arguing that what's happening now is really a weeks-long recess, not a bunch of little three-day recesses. In fact, once the option of intra-session recess appointments was established (which was done in the mid-20th century), there's no reason at all to assume that there's any difference between inter- and intra-session recesses. In other words, using the (again, established but contested) TR precedent would, some might argue, be far more of a justification for future weekend "recess" appointments than would what Obama did today.

Look, what we have here is an ambiguous, vague Constitutional clause. The president has every right to interpret it in his favor. At least in this case that he's doing is, in my view, a lot less hostile to the spirit of the Constitutional and certainly to the spirit of norms and precedents than what Republicans in Congress have been up to. And, again, one could make that same argument for Senate Democrats under Bush -- but at least they had the argument that recess appointments would be going around their Constitutional role (the only question is whether their solution was legitimate). House Republicans, and perhaps minority-party Senate Republicans, have much less of a case.

The real solution to all of this is to reform executive branch nominations and confirmation. And that's why I really like these appointments: they show a president who (finally) seems to care about that process, and perhaps may use the threat of further appointments, either now or next year if he is re-elected, to push for much-needed reform. What's needed is a way to action on these appointments much more rapid while preserving the Senate's important role, but at the same time finding procedures or incentives for compromise during times of divided government. Will we get it? I don't know, but I am convinced that this is at least possibly a step in that direction.

(Updated to include the point about Harry Reid)


  1. Huzzah! I agree this is good news and overdue.

    And I'm glad to see they skipped the TR route to preserve the ability to do appointments during any recess.

    Historical Question: Why did Teddy have to do all those appointments between sessions? Was he also facing massive obstruction?

  2. Jonathan:

    Excellent post. Well stated.

    I disagree that the majority of the Senate can hand the President a power that he doesn't have under the Constitution, but that's a minor point.

    On the potentially transformative effects this might have on the Senate, I'm right with you. And to me, that would be the best outcome; confirmation reform that defuses the hardball is far preferable to building a norm of executive recess appointments.


  3. I think this is a classic political question, to be worked out among the branches. They can either keep playing hardball or negotiate some sort of solution. The courts should not get involved.

  4. Thank you Obama. It's about time, and as you say, if nothing else it might help create a process of streamlining appointments so they can at least get a vote on the senate floor. A simple rule that they can't be filibustered would be a good start.

    Now maybe he can do the same for some judges?

  5. I agree that it is a fine distiction between the majority party in the senate putting the senate into recess, and the senate itself giving up its power. But it is real.

    Why now? Why not in the past. Election year stunt?

    Again, like health care, they neuter themselves. Cordray can't do much in a year. Given two years, however, they might have some time to point to some accomplishments.

    I know, I know. They wanted to let the Republicans hang themselves before doing this. But Obama is the rapidly shrinking president....if he doens't do something we have a real possiblity of him winning the election and then magically vanishing before the inaguaration.

  6. This was not up to President Obama to decide. He doesn’t get to decide when the Senate is in recess- he doesn’t have that authority. Oh, he can weight in on the issue and chirp all he wants- but the Congress decides when it is in recess, since it is its own branch and not any sort of puppet to our king.

    The Senate decides when it is in recess according to its own rules, and it has not done so. The Congress does not believe that it is in recess. Thus they are not in recess. They are holding pro forma sessions, which Obama thinks are in effect like a recess- but ‘in effect like a recess’ is not the same as ‘in recess under Senate rules’. If they are not in recess under their own rules, he doesn't have the authority to make a 'recess appointment'.

    Didn’t this guy teach law or something? It's not that complicated.

    Oh, and if you start making the argument that 'the ends justify the means and that our guys can break all the laws they want if they do what we want', be prepared to happily and willingly help the Tea Party Congress and a Romney President break any laws as badly as they want when it's their turn to decide what the ends are.

    Obama's behavior is criminal, and I will fight against it and similar behavior from the GOP because I believe in law and principles. You should change your tune and do the same.

  7. "Why now? Why not in the past. Election year stunt?"

    When else exactly? With whom? To what ends?

    The timing strikes me as just about eactly right, or, if you prefer, overdetermined. Among the multiple parallel, mostly overlapping reasons, not necessarily the most important one but a real one if true: Someone said they had to wait until today to ensure that Cordray would serve for two years instead of one.

  8. "Obama's behavior is criminal,"

    Criminal like jaywalking or criminal like spree killing? Anyway, name the statute he violated, and the penalties under the law, and take it to a jury, if you can find a prosecutor.

    Maybe, if someone brings a case, the Supreme Court will determine he was wrong. Maybe, if he prefers to fight, he will tell the Supreme Court, a merely equal branch, to mind its own business - or maybe the Supreme Court will tell itself that first. Maybe Congress will impeach.

    But crying "criminal" is just empty and one-sided polemics.

  9. "The Congress does not believe that it is in recess. Thus they are not in recess."

    Me, I got more of a laugh out of the Mitch McConnell as Tinkerbell argument. "If all of you clap your hands real hard to show that you do believe in nullification, maybe Freedom won’t die.”

  10. "He doesn’t get to decide when the Senate is in recess- he doesn’t have that authority. Oh, he can weight in on the issue and chirp all he wants- but the Congress decides when it is in recess, since it is its own branch and not any sort of puppet to our king."

    U.S. Constitution, Article 2, Section 3:

    ". . . 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; . . ."

  11. This is less a comment than a golf clap for the above comment. So, .

  12. Matt,

    It's not so much that the Senate majority can hand the president a power -- I agree with you on that -- but that given that there's no definition of "recess", I'm inclined to put some weight on what the Senate says is a recess.

    Which gets to Conservative Teacher's point...why is it Congress, and not the president, who gets to define what "recess" means in Article II? I certainly agree that it's up to Congress to decide whether to take a recess or not (except as Scott mentioned in II.3., but that doesn't apply to today's action). But what's at stake here isn't what Congress does; it's whether what Congress is doing counts as a recess.

    So: I can understand an argument that there's something objective out there that's a recess, and this ain't it. I'd disagree, but I think an argument could be made either way. But I don't agree that it's (only)up to Congress to designate what counts as a recess. That's not what the Constitution says.

    Not to mention that in this particular case, of course, the Senate (majority) does apparently agree that this is a recess, so that doesn't work, either.

  13. "The president has every right to interpret [the constitution] in his favor."

    I think this gets to the heart of the matter, and frankly I find your position unfathomable. Nemo iudex in sua causa. Rule of law. Etc. This is exactly how we get creeping power-grabs by the executive. A Conservative Teacher's language is strong, but his point is basically right - don't you dare complain about John Yoo now.

    I am certainly not saying that Obama's actions are unconstitutional - I am no expert. But the executive branch cannot be the judge of its own actions. This is for the courts to decide, and, hopefully, very soon.

  14. I think all nominations for agencies and judges should come to a vote. Always. If congress refuses to even vote, the president (regardless of party) should be able to fill all vacancies with recess appointments. This particular case gets the press, but there are sooooo many judicial bench vacancies that need to be filled and should not be held hostage to Washington politics.

  15. "Nemo iudex in sua causa"? No - alea iacta est.

  16. interesting point about the two year term vs. one year term.

    Actually, if I was Obama -- or his political director -- I'd have nominated about 45 people yesterday. Spit in the face of the Republicans -- get them all fired up and voting for Santurum.

  17. Others have noted that the positions in question are all ones that *have* to be filled in order for the agencies they head to function according to their legislatively defined roles. Both agencies will be making decisions or issuing rules that affect corporations (hence the GOP blocking tactics). I worry that those corporations will be found to have standing to sue to block implementation of the rules in question on the constitutional grounds that the heads were not properly appointed, and any such rulemaking will then be tied up in the courts for years.

  18. Jonathan:

    "he could have used a previously untried Constitutional provision to resolve the dispute about recess in favor of the Senate"

    I guess you mean his Article II powers to adjourn Congress to a time he thinks proper when the Upper and Lower House disagree. I wish Obama had done that because it would have been incontestably Constitutional, it would have targeted Boehner and the House specifically, and it would have been .... SO COOL!

    My assumption is that Reid vetoed that move, and that Obama's essential prudence militated against it anyway.

  19. I think Presidents should interpret the Constitution in good faith, and I think they should try in good faith to apply relevant Supreme Court precedents. The likes of John Yoo have already gotten off the bus by this point, so I am not particularly worried about being confused with them for what I am about to say.

    Subject to those conditions, however, it isn't really reasonable to ask Presidents to be totally neutral with respect to their interpretations of the Constitution as applied to presidential powers, and certainly you should not rely on such a notion because there are approximately zero historical cases fitting that description. I similarly see no inherent problem with Congress asserting self-serving interpretations of the Constitution, again provided they meet the conditions above.

  20. Jonathan, is it your view that the Senate adjourned for more than 3 days without the consent of the House? Is your intent to move the constitutional violation from the executive to the Senate?

  21. I agree with what BrianTH said. Good comment.

    Anon 1:41,

    I think that what I understand to be the WH position -- that the current situation is fulfills the Constitutional requirement for a "recess" because it's an extended period in which the Senate is essentially not meeting except for a technicality -- is a reasonable one. Especially since the majority of the Senate agrees, and even official House documents have referred to earlier such periods as "recess." I don't think it's necessarily correct, but I think it's reasonable, and on balance I agree with it. Remember, the 3-day thing isn't in the Constitution; it's just one interpretation, and it's not at all clear that it applies to this situation.

  22. Are we really getting too deep in the weeds here, though?
    The Constitution ain't perfect: they had to promise to amend it in 12 ways to get it passed (10 of which became the Bill of Rights, and the 11th took another couple of centuries to come about). It doesn't deal with parties, which required a quick fix after the tie in 1800 with the 12th Amendment.
    Simply put, the filibustering of nominees IS constitutional, but it SHOULDN'T be. Once we get lost in the details of how to fudge our way past this exploitation of poorly-written rules, I'm concerned that we lose sight of the problem that is the rules themselves, not how we can trick them.
    Personally, I'd like to see senators have to stand up and be counted for defending the right to filibuster nominees. I'd like to see that become a campaign issue.

    Sure, I say this as a guy whose side is currently the victim, and who was perpetrating the problem in the past. And I can't promise that I didn't support them filibustering then, either. But this is just no way to run a railroad.

  23. I disagree with Matt on this - I think filibusters for nominations are and should be Constitutional, although I do think the Senate should choose to make exec branch confirmations by majority vote.

  24. I agree filibustering of nominations IS constitutional, but why SHOULD it be?

    The Constitution specifies the voting rule for some other things, in part because those specific things often involve crucial interactions between the branches. Nominations seems like a plausible candidate for such a rule, and if we agree that the rule should be a majority, then what is the countervailing interest in leaving the determination of the rule up to the discretion of the Senate?

    In fact, I think you could make a reasonable case for it taking a SUPRAmajority to deny a President his nominee, which would track the impeachment and removal rules. But regardless of what you think the rule should be, why shouldn't it be a constitutional rule?

  25. I should have been more clear about why I referred to three days. Article I, Section 5 provides that neither house shall, without the consent of the other, adjourn for more than three days. As I understand the administration's position, it is that the Senate has recessed for several weeks without the House's consent. That is, the position seems to be, we're not violating the constitution, it's Harry Reid and the gang in the Senate who are.


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