President Obama’s “recess” appointments of Richard Cordray as head of the Consumer Financial Protection Agency and three individuals to the National Labor Relations Board have outraged Senate Republicans and generated much commentary on the constitutionality of the president’s actions. Not surprisingly, the commentary is dominated by the arcane legalese of attorney general and Office of Legal Counsel (OLC) opinions, along with a handful of judicial opinions, though none from the Supreme Court. Before we get lost in the legal weeds, we should take a look from 30,000 feet and consider the basic constitutional rule on judicial and executive appointments, and why the Constitution provides for recess appointments.
Article II, Section 2 authorizes the president to appoint judges and officers of the United States with the advice and consent of the Senate. That means the president cannot appoint such officials without the consent of the Senate, and there is no constitutional restriction on the reasons senators may have for declining to consent.
In other words, in the normal course of affairs, the Senate has the final word. This makes sense when we recall that among the indictments of King George III at the time of the Revolution were that “He has made Judges dependent on his Will alone …” and “has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” Eleven years later, when the passion of revolution yielded to the practical challenge of writing a functional constitution, the framers understood the need for a strong executive branch, but they were not about to risk another monarch. One important control on the new president was a Senate veto on the appointment of judges and executive officers.
Being practical men, the framers also understood that occasions may arise where the public need requires prompt action but the Senate cannot be available to advise and consent. The recess appointments clause was their solution. But that clause should be interpreted in light of the overarching principle that the Senate, not the president, has the final say on appointments.
It is sometimes urged that because the president won the election, the Senate should defer to his nominees — that the president has a right to appoint judges and executive officers of his choosing. But that is a political, not a constitutional, argument. Members of the Senate can and will be influenced by political considerations, but the president has no constitutional claim to their deference.
So what’s going on in the legal weeds of the recess appointments controversy? Is the fundamental principle that the Senate has an effective veto on presidential appointments guiding the discussion? Unfortunately, it is not.
Two days after the president announced the appointments, the OLC issued a 23-page memorandum concluding that “[t]he convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a ‘Recess of the Senate’ under the Recess Appointments Clause.” Presumably the president has relied on this document in concluding that he has constitutional authority to make the controversial appointments.
Relying on a 1921 opinion of Attorney General Harry Daugherty, the OLC says that the “constitutional test for whether a recess appointment is permissible is whether the adjournment of the Senate is of such duration that the Senate could ‘not receive communications from the President or participate as a body in making appointments.’” Even putting aside the lack of any public urgency, the president’s January 4 appointments do not meet this test. The problem is not that the Senate cannot receive communications and be available to provide its advice and consent on the president’s nominations. The problem, at least for the president, is that the Senate has made clear that it does not want to act on these appointments, which is why it has resorted to the device of pro forma sessions.
As the living Constitution folks so often remind us, things are not what they used to be. When the recess appointments language was written, it took weeks for many members of the Senate to get from their homes to the Capitol. The prospect of executive and judicial positions left vacant for extended periods of time due to an inability of the Senate to perform its constitutional responsibility was a practical reality. That is not true today, particularly in the case of so-called “intrasession recesses.” Senators can be in Washington in a matter of a day or two.
Quoting from another attorney general opinion, the OLC states that “in determining whether an intrasession adjournment constitutes a recess in the constitutional sense, the touchstone is ‘its practical effect: viz., whether or not the Senate is capable of exercising its constitutional function of advising and consenting to executive nominations.’” The January 4 appointments simply do not satisfy this requirement. It does not pass the straight-face test to argue that the practical effect of the Senate’s pro forma sessions is to make the Senate incapable of exercising its advice and consent authority. Indeed, the point of the pro forma sessions is to assure that the advice and consent function will not be circumvented by the president.
Of course, the president’s position is that the Senate is circumventing his authority to make executive appointments during a recess. So who has the better argument in light of the overarching constitutional design? Without a doubt, it is the president who is doing the circumventing.
The purpose of the recess appointments clause is not to authorize appointments that the Senate will not consent to in the normal course of its business. Its purpose is to assure that the urgent business of government will not be stymied when the Senate is actually unavailable. It is absurd to suggest that the Constitution would give the Senate a final say on appointments, but allow the president to act as king when the Senate is not in session.
Again quoting from Attorney General Daugherty’s 1921 opinion, the OLC memorandum asserts that “the President is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate.” It is not surprising that any attorney general, having been appointed by the president, would suggest deference to the president on this question of process. But it can’t be correct given Article II’s clear assignment of the final word on appointments to the Senate.
The OLC memorandum goes on to conclude that “[t]o preserve the constitutional balance of powers, the Supreme Court has held that congressional action is invalid if it “‘undermine[s]’ the powers of the Executive Branch, or ‘disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.’” In relying on this language from Morrison v. Olson, the OLC really makes the case for the unconstitutionality of President Obama’s January 4 recess appointments. It is the president who is disrupting the constitutional balance of powers by preventing the Senate from accomplishing its constitutionally assigned function of advising and consenting to all appointments except when circumstances prevent timely action by the Senate.
Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.