Sunday, January 8, 2012

President Obama's Recess Appointments

President Obama's recess appointments last week of Richard Cordray to head the Consumer Financial Protection Board and three new members of the National Labor Relations Board have come under fire for violating a 3-day rule.  That is, opponents claim, the period between the Senate's pro forma sessions this month and last is less than three days, and therefore is not a "recess" under the President's recess appointment power.  In short, they say, because the Senate is not in "recess," the President lacks authority to appoint without Senate confirmation.

But there's nothing in the Constitution that defines a "recess" as three days or more (or as any other period).  The (scant) textual support for opponents' claim comes from Article I, Section 5, Clause 4, the Adjournments Clause, which says that neither chamber can take a break of more than three days without the consent of the other:

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Based on this Clause, the Justice Department wrote in its brief in Mackie v. Clinton (D.D.C. 1993):

If the recess here at issue were of three days or less, a closer question would be presented.  The Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. . . .  It might be argued that this means that the Framers did not consider one, two or three day recesses to be constitutionally significant. . . .

Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days.  Whatever number of days is deemed required, that number would of necessity be completely arbitrary.

Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993), vacated as moot, 10 F.3d 13 (D.C. Cir. 1993), Memorandum of Points and Authorities in Support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment, at 24-26 (emphasis added).  (Note the difference in language: The Adjournment Clause uses "adjourn"; the Recess Appointment Clause in Article II uses "Recess.")

Thus Article I, Section 5 doesn't plainly require, and the Justice Department's brief doesn't acquiesce to, a 3-day rule.  In fact, the President has made recess appointments during recesses of three days or less between sessions at least twice--when President Truman appointed Oswald Ryan to be a member of the Civil Aeronautics Board on January 1, 1949, during a three-day recess, and when President Theodore Roosevelt appointed 160 mostly military officers during a several-hour recess.  (In the last 30 years, the shortest recess periods during which a President made a recess appointment were 11 and 10 days: President Reagan made a recess appointment during an 11-day intersession recess, and President Clinton made a recess appointment during a 10-day intrasession recess.)   See Henry B. Hogue, Congressional Research Service, Recess Appointments: Frequently Asked Questions.

Despite the lack of support for a 3-day rule, both parties in the Senate in recent years have sought to structure Senate recesses around it, and ran pro forma sessions every three days or less in order to avoid a recess of more than three days and thus, according to their view, deny the President an opportunity to recess appoint.  Republicans went a step further this summer, when one group of Republicans from the Senate and another group from the House both wrote to House Speaker Boehner to urge him not to pass any House resolution that would permit the Senate to go into recess for more than three days (under the Adjournment Clause).

What with the obvious political motivations and the pro forma (and not real) sessions, some have claimed that President Obama had authority to recess appoint even in a recess of less than three days.  But in truth we need not go so far, because there's only very weak textual support for a 3-day rule, the Justice Department has not acquiesced in a 3-day rule, and past practice cuts against such a rule. 

The lack of a 3-day rule wouldn't leave Congress without appropriate checks.  It still has the power of the purse, it still has oversight authority, and the Senate still has its advise-and-consent role for non-recess appointments (including those recess appointments that expire and then come up for Senate confirmation, assuming the President doesn't re-recess-appoint, which the President may do).  And, of course, Congress can move to change the law.

This last course seems most appropriate here.  Senate Republicans never objected principally to Cordray; instead, they held up his confirmation because they objected to the CFPB.  The cleanest, most transparent way to change the CFPB, of course, is to try to change the CFPB.

The Congressional Research Service has done some excellent work (as usual) on recess appointments.  Check out these:


Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink

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So, if Senate rules, accepted to both parties, are violated, or otherwise ignored, by the President, that violation, even if previous Presidents may have violated the 3-day rule with impunity, is manifestly constitutional and does not in any way violate the separation powers? Thus, if the Senate believes its rules are to be absolutely honored by both parties, which would include party leaders, then why isn't the President's act a breach of trust?

Posted by: Jim Delaney | Jan 10, 2012 10:23:09 AM

Professor Schwinn,

I think your analysis is more thorough and academic, but I do prefer the conclusions in Professor McConnell's article in the WSJ (here: I think the John Locke argument got me.

Can you address Professor McConnell's label of the Article 1 Section 5 three days as an "adjournment" and not as a "recess," which he claims has a minimum number of days above three? The pertinent selection:

"Article I, Section 5, Clause 4 requires the concurrence of the other house to any adjournment of more than three days. The Senate did not request, and the House did not agree to, any such adjournment. This means that the Senate was not in adjournment according to the Constitution (let alone in "recess," which requires a longer break)."

Your analysis is that there is no defined minimum or any definition for the length of a recess in the Constitution. To what is he referring?

Thank you. I read every blog post and particularly liked your discussion of the NDAA detention policy as just a confirmation of what is already the DOJ policy under President Obama.


Posted by: Matt Fender | Jan 11, 2012 8:42:52 PM