Recess Appointments and Trust

President Obama has, in the past, criticized President Bush’s alleged tendency to push Constitutional limits in seeking to expand Executive Branch power.

Now we come to some “recess” appointments, made because Republicans allegedly were blocking Senate confirmation.  Michael McConnell, writing for Advancing a Free Society, offers some insight.

First, the present set of appointments (to the CFPB and to the NLRB) were made while the Senate was in session through a series of pro forma, short sessions, ostensibly for the purpose of blocking recess appointments.  The use of pro forma sessions for this purpose was a tactic devised in 2007 by Senate Majority Leader Harry Reid (D, NV) and then-Senator Barack Obama (D, IL) specifically to prevent Bush from making recess appointments.

Second, ex-University of Chicago Constitutional Law Professor Barack Obama appears to have acted without legal advice other than his own: even his own Office of Legal Counsel, the body intended to advise presidents ahead of time on the legality of an action (and note that this is advice; OLC opinions are not law and are not binding), didn’t issue their opinion justifying Obama’s appointments until two days after the appointments had been made.  McConnell is more generous than I, suggesting that “presumably it reflects the advice given to the President in advance.”  I have my doubts.

Third, there are a number of legal arguments that suggest that Obama’s appointments are, in fact, unconstitutional, all centering on the fact that, as Reid and Senator Obama understood in 2007, the Senate actually has to be in recess before recess appointments can be made.  McConnell offers the following.

Obama and his pet OLC insist that since the Senate had announced an intention of conducting no business during its pro forma sessions, it was, in fact in recess.  Never mind that Obama signed into law at least two pieces of legislation that had been passed during those sessions, including the infamous payroll tax reduction extension.  This is old news.  McConnell offers new insight, though:

It is hard to see why the Senate’s stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so.

McConnell goes on:

[T]he Opinion creates an implausible distinction between the legal efficacy of pro forma sessions for various constitutional purposes. According to the Opinion, a pro forma session is not sufficient to interrupt a recess for purposes of the Recess Appointments Clause, but it is sufficient to satisfy the constitutional command that neither branch adjourn for more than three days without the consent of the other  and that Congress convene on January 3 unless a law has provided for a different day…. Why a pro forma session would count for some purposes and not others is a mystery.

And there are other, longer-standing demonstrations of the illegitimacy of these appointments.  For one thing, the NLRB “nominees” hadn’t even been proposed to the Senate until two days prior to their previously announced, well publicized, ordinary holiday break, which the Senate then voluntarily gave up in order to remain in (pro forma) session.  The only one who was blocking Senate confirmation here was the President.

Also, we get the strange concept that the President can decide for himself when the Senate (or, by extension, the Congress) is in session, the Senate (or the Congress) not being competent to make that determination for itself.  Certainly, the President can adjourn both houses when they cannot agree between themselves on adjournment and ask him for help.  Certainly, the President can call the Congress into session to deal with emergencies.  Deciding that they actually have convened—or not—seems a bit of an expansion of Executive Branch power.

Where’s the love?  Where’s the trust?  Hmm….

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