Larry Tribe has a piece defending Obama’s recess appointment of Richard Cordray using some eye-opening theories to defend presidential power that even I hadn’t thought of, and I’ve thought of a lot. As I understand it, Tribe argues that presidents can ignore “sham” sessions of the Senate because the Framers wanted the president to be able to fill important positions without delay because it could take too long to assemble senators from all over the country. He then claims a long practice of presidents making appointments during breaks in Senate proceedings, even during a session. He claims that:
Article II charges the president to “take care that the laws be faithfully executed”; this duty, combined with appointment and recess-appointment powers, requires an irreducible minimum of presidential authority to appoint officials when the appointments are essential to execute duly enacted statutes.
Tribe, I’m afraid, has it wrong, though I am glad to see he is arguing on the basis of the Constitution’s text, structure, and history and not on the need to strike a blow for consumer rights with a person from Ohio (which so far has been the White House’s explanation). First, on the history: All of the precedents cited by Tribe occurred when the Senate was adjourned. The question was when does an adjournment of the Senate become long enough to qualify as a “recess” under Article II, Section 2 of the Constitution. As far as I know, and Tribe cannot claim to the contrary, no president has ever made a recess appointment when the Senate was formally in session. This is not a question of when does an adjournment become a recess — here, there has been no adjournment.
Second, Tribe ignores Article I, Section 5 of the Constitution which states that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” I had thought of including this in my earlier post, but didn’t, because I thought there was no question that the Senate was not adjourned. But if one needed to double-check, I understand that the House never gave its approve for the Senate to be adjourned (not surprising, because the Senate didn’t ask for it), so constitutionally the Senate could not even have gone out of session.
Third, Tribe does not ask the important question of who decides. It is stunning that he believes it is the president’s right to judge the quality of the proceedings of another branch. This violates the basic idea of the separation of powers that each branch is in charge of its own functions. This is not even a hard question that arises when the branches fight over a shared power, like the treaty power for example (though it does ultimately involve appointments). Here, it is for the Congress to decide how to operate and govern itself, not the president. If the Senate wants to have a session where nothing happens — which, I might argue, is best for the country in many cases — that is its prerogative. The president has no constitutional authority to decide the Senate isn’t busy enough to qualify as in session, just as the Congress has no right to decide whether the president has thought hard enough before considering his signature or veto of a bill to be legitimate.
Fourth, and most eye-opening, is Tribe’s claim that because the president has the duty to execute the laws, he must have the power to appoint Cordray because he needs him to execute the laws. This cannot be right; if so, it would actually require that Congress not just create but also fund executive branch positions. Suppose Congress decided it did not want to make any financial provision for Cordray or for some other government body — under Tribe’s theory, the president one supposes could just take the money out of the Treasury to pay for it. The president, it seems, could appoint someone to any open executive branch position without Senate consent, if the president feels it is important enough.
Even though I am a supporter of presidential power, I also believe that the Framers intended each branch to control its own formal constitutional authorities and functions (which is, in fact, why I defend the presidency so strongly on foreign affairs and national security). And the core power of Congress is the power of domestic legislation and the power of the purse. Congress has the power to decide what the size and shape of the federal government is to be and whether to pay for it — that is the real check on the presidency. Presidents have generally respected those limits, except during time of greatest emergency (such as the outbreak of the Civil War). Obama goes beyond anything any president has before, for reasons that are obviously partisan rather than where the national safety demands it. It is a waste of presidential authority, and one I think that will haunt Obama.