Court: Obama Violated Constitution in Making Recess Appointments

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Recess appointments bypass Congressional hearings. Image by Kmccoy

Recess appointments bypass Senate hearings. Image by Kmccoy

Recess Appointments: What Are They?

Article II, Section 2 of the U.S. Constitution states that the president, by and with the consent of the Senate, can appoint ambassadors, judges of the Supreme Court, and other officers whose appointments are not otherwise provided for. But the president alone can make these appointments if vacancies occur while the Senate is in recess. These recess appointments expire at the end of the next session of the Senate.

The reason for granting the president the power to make recess appointments was because when the Constitution was drafted, it would take weeks for members of Congress to get back to Washington in between sessions. Recess appointments would allow the government to continue to function when lawmakers were away from the capitol.

The first recess appointments were made in the 1820s. In 1867, the first appointment was made while Congress was on a break. Prior to that, all appointments were made only in between formal sessions of the Senate.

Senate Confirmation and Partisan Bickering

In recent years, as partisan bickering has increased – making it more difficult for a president to have his choices for office confirmed – the use of recess appointments has increased. While Obama has only made 32 such appointments, Bill Clinton made 139 and George W. Bush, 171.

The Senate, with unanimous consent, agreed to meet on a pro forma basis from December 20, 2011 until January 3, 2012. They would meet every three business days to prevent recess appointments, although it was agreed they would conduct no business – although the Senate overrode this ‘conduct no business’ agreement to extend the payroll tax. It was during this time period that the appointments in question were made. On January 4, 2012, Obama made the appointments that were the subject of the constitutional argument.

Congress: Pro Forma Sessions

Article I, Section 5, Clause 4 states that neither the House nor the Senate can adjourn for more than three days without the consent of the other. In 1993, a Department of Justice brief in the case of Mackie v. Clinton, argued recess appointments can be made as long as the recess is for at least three days. This was the basis of the Senate meeting pro forma every three business days.

The idea of holding pro forma sessions began with the Democrats working to prevent George W. Bush from making recess appointments. During these pro forma sessions, Bush did not attempt to make these appointments. Obama is the first president to make appointments while the Senate was technically in session.

The Constitution does not specify how long a recess must be before recess appointments can be made, and 2 Presidents (Democrat Harry S. Truman and Republican Teddy Roosevelt) have made appointments during brief adjournments (less than three days) in the past.  For example, on December 7, 1903, during a transition period between sessions, one session ended at noon and the next one began later that day. During the hours-long interval, President Theodore Roosevelt made more than 160 ‘recess appointments.’

Recess Appointments: What the Court Said

Many of the facts surrounding the constitutional argument were not in dispute. It was agreed that the NLRB needs a quorum of three members, and it was agreed that three of the five panel members were not confirmed by the Senate. It was not disputed these three members were appointed while the Senate was not sitting, and that their appointments were not made during a formal recess. And it was agreed that the members of the Board were “officers of the United States” as set out in Article II of the Constitution.

What the court had to decide is whether these recess appointments can be made only during “the Recess” that is in between formal sessions of the Senate or “a recess,” which occurs anytime the body is not sitting. The court decided the former was the case and therefore the three appointments made to the NLRB by Obama were invalid.

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