Why Congress is Wrong on Recess Appointments

In the old days, if a Senator wanted to filibuster a bill, the best tactic he had was to hold the floor by speaking nonstop. Not only did this keep the Senate from moving forward, but the sheer physical drain on the Senator made the practice rare and the specter caused a great deal of attention to be drawn to the bill being filibustered. 

Today, the Senate rules have been changed to allow Senators to simply state that they are filibustering. Lazy Senators simply no longer have the conviction to stand in opposition to legislation that they openly oppose. This new ability to receive all of the benefits of filibustering without putting forth any of the effort has made the practice common place. 

This same laziness caused the current controversy surrounding recess appointments when President Obama appointed 3 people to the NLRB and one person to the head of the Consumer Financial Protection Bureau while the Senate was in pro forma session.

In 2006, the Democrats took control of Congress. To prevent President Bush from making recess appointments, Senate Majority Leader Harry Reid wanted to keep the Senate in session and not go on recess. However, he didn't want to miss out on vacations or time off so he created the new practice of using pro forma sessions to prevent a recess appointment. In pro forma sessions, the Senate can all go home as long as one of them remains behind to call the Senate to order every three days and then immediately dismiss it. This is done because although there is no legal time limit, three days is the historically accepted amount of time for the Senate to be in recess and allow the President to make recess appointments and legitimately claim that the Senate's advice and consent is not available.

Senator Reid did not hide the fact that no business was to be conducted during these pro forma sessions, and that he was enacting the practice with the sole intent to prevent President Bush from making recess appointments. He stated that purpose on the Senate floor and in numerous press statements. The tactic worked and President Bush made no more recess appointments.

The Republicans took over the House in the 2010. In 2011 they decided to force the Senate to remain in session by refusing to agree to a recess. However, they also didn't want to miss out on Christmas vacation, so they returned to Senator Reid's tactic of pro forma sessions. 

President Obama called their bluff. He made his appointments and used the legal justification that no matter what technical rule was in place, the fact remained that the Senate was not present in Washington and as such were not available for advice and consent.

President Obama is right and the House Republicans are wrong. Senator Reid and the Democrats were wrong in 2007 and 2008 and President Bush should have called them on it.

The Republicans are right to feel short-changed. The Justice Department noted that the Senate adjournment declares that no business is to be conducted in the pro forma session and that there is no historical basis for the pro forma sessions as they were only started in 2007. They fail to mention that the tactic had no historical basis whatsoever when Senator Reid used it in 2007 while also expressly stating that no business would be conducted. In other words, the Democrats expected President Bush to abide by the rule when they started it, but don't expect President Obama to abide by it when the Republicans continue it.

Despite legitimately feeling wronged, the Republicans have no one to blame but themselves and they themselves can fix the problem. In the future, if the Republicans believe that President Obama is such a threat that he cannot be allowed to exercise his constitutional authority, then they should, at a minimum, have the fortitude to stay in Washington in full session and miss their winter break to ensure that he doesn't exercise that power. 

In addition to the matter of laziness related to pro forma sessions, the question arises as to whether the founders intended the House to be able to block recess appointments. There is a reason why the Constitution requires the consent of the Senate and not the overall Congress. It does not seem reasonable that the founders intended a party that controlled only the House to block the actions of the Senate and the Executive Branch in relation to appointments.

If Senators still spoke for days about the evils of one piece of legislation, filibusters would be rare and the nation would still pay attention when they were actually performed. If House Republicans had been willing to actually remain in Washington instead of going on vacation, then they may actually have stopped the President from making those appointments. They should take this as a lesson. In the future, only use pro forma sessions for their intended purposes and not because you want to still do your job while on vacation.