Scrutinizing the recess-appointment power

Congressional Republicans hoped pro-forma sessions every third day on Capitol Hill would prevent President Obama from making recess appointments. It didn’t — the president decided these sessions were a sham preventing him from using his constitutionally-mandated powers.

Some credible observers have made the case that Obama overstepped his authority on this one. To crudely summarize the argument, it’s up to the legislative branch, not the executive branch, to decide when Congress is and is not in session. If lawmakers want to use pro-forma sessions to prevent a recess, it’s not up to the White House (any White House) to say the faux sessions don’t count.

It’s not a bad argument, but Laurence Tribe, a Harvard constitutional scholar, is more persuasive today making the case that Obama was correct to ignore “these sham sessions,” strike a “badly needed blow for checks and balances,” and do so with the support of both “the text and the original purpose of the recess appointment clause.”

Its aims, as Alexander Hamilton wrote in Federalist No. 67, included facilitating appointments “necessary for the public service to fill without delay.” Although the main concern in 1789 involved difficulties of travel that kept a recessed Senate from acting swiftly, the broad imperative retains modern relevance, even when the Senate engineers its own unavailability.

Past practice also points the way. Presidents have long claimed, attorneys general have long affirmed and the Senate has long acquiesced to the president’s authority to make recess appointments during extended breaks within a Senate session. In 1905, the Senate Judiciary Committee concluded that “recess” referred to periods when, “because of its absence,” the Senate could not “participate as a body in making appointments” — a definition that precludes treating pro forma sessions as true breaks in an extended recess.

Since 1867, 12 presidents have made more than 285 such appointments, without constitutional objection by the Senate. And attorneys general going back to Harry M. Daugherty in 1921 have held that the Constitution authorizes such appointments.

Tribe added that this power could be abused, and shouldn’t be exercised “whenever the Senate breaks for lunch,” but presidents can resort to these appointment “in instances of transparent and intolerable burdens on his authority.”

And as Jonathan Cohn argues today, the Republican reliance on a nullification strategy, refusing to allow existing government agencies to function by blocking votes on their staff, offers just such an example. The GOP, Cohn explained, is “undermining duly passed laws they don’t like but can’t repeal,” and that’s untenable.

The natural question is whether I’d feel differently if this were a conservative president circumventing a progressive Congress. The details of all circumstances matter, of course, but I feel entirely comfortable saying that nullification is always wrong and constitutionally offensive, no matter which party is trying it.

I’d add, by the way, that the center-right Washington Post editorial board also agrees with the Obama White House’s move, as does Sen. Scott Brown (R-Mass.). Indeed, the entire basis for the president’s decision was spelled out months ago by Bush/Cheney lawyers.

It does not, in other words, have to be considered a partisan argument.