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How Obama Should Get Tough With Congress on Recess Appointments

In his speech last Tuesday in Osawatomie, Kansas, President Obama initiated a new campaign to pressure Senate Republicans to drop their filibuster against Consumer Financial Protection Bureau nominee Richard Cordray and actually vote on his confirmation. But if he was expecting Republicans could be convinced to change course, he was being naïve: No one was surprised when Republicans used a filibuster to defeat a cloture vote on Cordray on December 8, thus killing, for now, his nomination.

It’s been clear for a while that the president’s only real choice if he wants to get the new agency fully up and functioning will be to exercise his recess appointment power. Of course, even then, Obama is sure to encounter resistance from Republicans. Clearly, Obama will need to reassert his authority on this issue. Fortunately, he has an excellent precedent in his new role model, Teddy Roosevelt.

The Constitution explicitly grants the president “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.” But people have been fighting about what exactly that means for two hundred years. Indeed, there are multiple fights, because there is more than one type of “Recess of the Senate.”

Intrasession recesses, for instance, take place every day when the Senate quits for the night or for the weekend, but neither of these meet the Constitutional requirement for recess appointments, according to precedent. Then there are the longer intrasession breaks, such as those that Congress takes over most holidays and in August. In the 1920s, it was determined that recess appointments ought to be allowed during those periods.

But today’s Republican Party has found a way to prevent those longer breaks from even taking place, at least in a technical sense. Republicans in the House have started holding very brief pro forma sessions every three days over these breaks, thus forcing the Senate to do the same (the Constitution doesn’t allow one chamber to break for more than three days unless the other does too). Thus far, Obama has abided by the (mixed) precedent of allowing the House to block congressional recesses during a given Congressional session.

This week, however, should mark the end of the first session of the 112th Congress, which ought to give the president the chance to make recess appointments in the interim before Congress meets again in early January. Even here, however, Republicans may not play fair: There have been suggestions that Republicans in the House will maneuver to prevent any time from passing between the current session and the next. What should Obama do then? Well, that’s where Roosevelt comes in.

Throughout 1903, the Senate minority was blocking several nominations put forth by the White House. President Roosevelt should have been able to wait for that Congressional session to adjourn and make his recess appointments before the next session was scheduled to begin, by Constitutional mandate, on December 7 of that year. However, House Speaker Joe Cannon refused to go along, keeping the House in session throughout the break.

In response, the Senate leadership concocted a plan. On the big day of December 7, the Senate convened, adjourned, and immediately began an entirely new session. As The New York Times report had it the next day:

The conclusion has been reached that between the time of the falling of President pro tempore Frye’s gavel signifying the conclusion of the extraordinary session and the calling to order of the Senate in the regular session of Congress, an appreciable lapse of time occurred. In this time the appointments technically were made. … There was but one fall of the gavel, but one stroke, and but one sound.

And in that instant, Roosevelt made 168 military promotions that normally would have to have been approved by the Senate, as well as “about 25 civilian appointees.” 

Was it legal? No one knows with certainty, as it wasn’t adjudicated in the courts. Two years later, a Senate report concluded that it wasn’t allowable, but that was just the institution defending its own prerogative. It’s pretty unlikely, meanwhile, that the Supreme Court would want to get involved in a squabble between the other two branches, and even if it did the Court hasn’t exactly been reluctant recently to side with the presidency. Not to mention that recess appointments have limited duration to begin with; it’s unlikely that the Court would rule before the terms expired, anyway.

But even if Obama doesn’t prefer the example set by Roosevelt, he has other options. There’s an unused Constitutional provision giving the president the power to step in when the chambers cannot agree on adjournment: He could thus block House Republicans’ efforts to prevent a recess by siding with Senators’ preference for a normal adjournment. Or, he could simply declare that in the present circumstances a long Senate recess punctuated by brief pro forma sessions every three days is still a “Recess of the Senate” in his opinion, and therefore sufficient for his Constitutional recess appointment power to kick in. While there is no Supreme Court ruling on the issue, a lower court ruling appears to support him should he choose to go that route.

The broader point, however, is that presidents do not have to sit back helplessly in the face of innovative and unprecedented congressional obstruction. True, sometimes they don’t have the votes, or the law, on their side, and they will be defeated. But presidents are perfectly entitled to make use of whatever legal and Constitutional options are available. Indeed, simply threatening to make a recess appointment dump might be sufficient to convince Senate Republicans to loosen the blockade. Barack Obama sought to call on the spirit of Teddy Roosevelt in his Osawatomie speech. If he really wants to emulate TR, however, it’s time for some recess appointments.

Jonathan Bernstein blogs at A Plain Blog About Politics.