Bench Memos

When Is a Recess Not a Recess?

It’s not often that I can come off as more pro-executive than John Yoo, but this morning on Bill Bennett’s radio show, I was taking rather the opposite line from Yoo’s Corner post regarding President Obama’s recess appointments.  I was then under the influence of John Elwood’s very persuasive post at the Volokh Conspiracy.  If you read both Yoo and Elwood, you’ll get the arguments framed pretty nicely on both sides.

The whole business strikes me as illustrative of the way our checks and balances give both branches of government opportunities to behave badly.  Presidents appoint high executive officers with the Senate’s approval.  If presidents behave responsibly, they make timely nominations when the Senate is in session, and take it on the chin manfully if their nominees are defeated fair and square.  The Senate behaves responsibly when it takes up nominations in a timely way, vets the nominees fairly and expeditiously, and proceeds to an up-or-down vote: no holds, no failure to schedule hearings, no filibusters unless the process has been unduly rushed without a chance for decent debate.

Throw a little partisanship in the mix, and we get the mess we’re in.  The president wants people in office whose confirmation is controversial, so (in at least a couple of the current cases) waits until the Senate is on the eve of adjourning its current session.  Other would-be officials may have had their nominations languishing in the Senate thanks to dilatory or obstructive tactics by senators.  So the president invokes the recess appointment power, which was placed in the Constitution in expectation of a congressional calendar that had the Senate out of session more of the year than it was in.  The modern use of the recess appointment was not what the framers had in mind, but so be it: the departure of the Senate at the conclusion of its annual session presents the president’s opportunity.  The latest innovation, apparently dating only from the George W. Bush years, is the “pro forma session” in which the Senate “technically” holds back from adjourning its annual session by sending a lone senator into the chamber once in every three days to pretend it’s still there.  I’m not altogether persuaded by John Yoo that this is kosher.  He argues that it is up to the Senate, not the president, to decide when it is and is not in recess.  But as John Elwood points out, there can be some serious risk to the proper functioning of the executive branch if the president cannot fill offices, and thereby see that agencies perform their duties, because the Senate pretends to be in session but has no quorum present to conduct any business such as considering his nominations.  Neither side’s claims, taken to their logical conclusion, make for a satisfactory outcome where constitutional responsibility is concerned.

As I said, plenty of bad behavior all around.  But this is not abnormal, in a government founded on the insight that “men are not angels,” as James Madison said in the Federalist.  So I can’t get my outrage meter up past about 3 or 4 over what President Obama has done with these appointments.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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