January 6, 2012


Call the Senate's bluff on recess appointments (Steven G. Bradbury and John P. Elwood, October 15, 2010, Washington Post)

[T]he Senate cannot constitutionally thwart the president's recess appointment power through pro forma sessions.

Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not "in session for the appointment of officers."

In a 1905 report that the Senate still considers authoritative, the Senate Judiciary Committee recognized that a "Recess of the Senate" occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot "participate as a body in making appointments." The committee cautioned that a "recess" means "something actual, not something fictitious." The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question "is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word 'recess' a technical and not a practical construction, is to disregard substance for form."

The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president's nominations. That means the Senate remains in "recess" for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.

The writers are Washington attorneys. From 2005 to 2009, Bradbury headed the Office of Legal Counsel in the Justice Department, and Elwood served as deputy assistant attorney general. Although Bradbury was nominated as assistant attorney general in 2005, his nomination was never voted on by the full Senate. Individual senators put holds on the nomination, and Senate leaders instituted pro forma sessions to prevent a recess appointment.

...it's only unconstitutional when the other party does it.

Posted by at January 6, 2012 6:26 PM

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