Barack Obama - Recess Appointments during Session

Last Updated : Sep 05, 2012

Summary

The Constitution grants the President the power to appoint people with the advice and consent of the Senate, meaning that the Senate must confirm the President's appointments to the relevant offices. When the Senate is not available, or in a recess, the President can appoint people to those posts who remain in office until they receive the Senate's confirmation or until the end of the next Senate session. These are known as recess appointments.

Recess appointments are not uncommon in a Presidency, and opposition from the opposing party in the Congress is also common. To prevent a recess appointment, the Senate may stay in session and remain at work to prevent a time when their advice is not available. In 2007 and 2008, Senate Majority Leader Reid used a new tactic of pro-forma sessions to prevent President Bush from making recess appointments. Historically, the Senate must be out for at three days before a recess appointment is made, but there is no legal requirement for this time limit. Pro-forma sessions are those in which no business is conducted, but a member of the House or Senate brings the chamber to order every three days and then dismisses it. No work is typically done. This prevents a period of longer than three days from elapsing without work being done in the Senate.

In calling for an conducting those pro forma sessions, Senator Reid explicitly stated that no business was to be conducted during those pro forma sessions and that they were being called with the sole intent of blocking recess appointments. The tactic worked and President Bush made no recess appointments after the Democrats won the Senate in the 2006 elections.

The Constitution also states that neither the House nor the Senate may recess without the consent of the other chamber. After the Republicans won the House in 2010, the House refused to consent to a recess, and forced the two chambers to remain in session between the 2011 and 2012 sessions. The again used pro forma sessions instead of staying in full session.

The 2012 session began on January third in a pro forma session, and these pro forma sessions were scheduled to be conducted until the House and Senate fully returned on January 23. On January 4, 2012 President Obama appointed 3 people to the National Labor Relations Board (NLRB) and one to head the Consumer Financial Protection Bureau. Republicans contended that this was not legal as the Senate was in a pro-forma session as was done with President Bush.

The Justice department issued a paper providing the legal justification for President Obama to make the appointments. That paper concluded that although the Senate was conducting pro forma sessions, the fact remained that the Senators were not in towm and not available for advice and consent. Special instructions on other matters supports this idea as items will not be addressed until the Senate returns from recess. The paper also concluded that pro forma sessions were simply rules and that the Senate could not by rule unilaterally prevent the President from exercising his authority to make temporary appointments by declaring itself in session when, in practice, it is not available to provide advice and consent, any more than the President could make a recess appointment when the Senate was in practice available to do so. 

 

Documents

The documents shown in the table below are used throughout this writeup and can be accessed through the link provided. They are official documents and were obtained through official sites and text from these sources was used in the writeup below.

 

Documents Referenced
Document Number Name of Document
1 FAQ on Recess Appointments written by Henry Hogue at the Congressional Research Office on January 9, 2012.
2 Opinion of the Justice Department on President Obama's recess appointments. Written by Virginia Seitz at the Justice Department

 

Sessions and Recesses

When the US government was created, three branches of government were formed. The executive branch is the President, the judicial branch is the supreme court and other judiciary bodies, and the legislative branch, which is the Congress. The constitution established that the two chambers of Congress, the House and the Senate, would be balanced in that each state's power in the House would be determined by its size in population. Each state was equal in the Senate with two Senators from each state.

The House was designed to change rapidly with the sentiment of the nation and the Senate was designed to change slowly to prevent sentiment form moving the nation too quickly in one direction. This was accomplished by holding elections every two years and setting the House term to two years so that if the country desired it, it could change the entire House every two years. Senators have terms of 6 years and every two years, one third of them are up for re-election. This provides the slow moving facet of the Senate.

Every two year term of Congress is numbered with the current 2011-2012 term being the 112th Congress. Each term of Congress is broken up into two sessions, on for each year. The sessions typically run from late January to early December are are numbered session one and two. There are a number of smaller breaks within the year to provide for holidays and to allow the representatives the change to return to their districts to get back in youch with their constituents.

The time between the two sessions each year is called an inter-session recess. The shorter breaks within the year are called intra-session recesses.

 

Constitutional Powers

Article 2 of the Constitution creates the office of the Preident and gives that office its powers. Section 2 of that article discusses the powers to appoint people and to make recess appointments when the Senate is not available.

 

History of Recess Appointments

President William J. Clinton made 139 recess appointments, 95 to full-time positions. President George W. Bush made 171 recess appointments, of which 99 were to full-time positions. As of January 5, 2012, President Barack Obama had made 32 recess appointments, all to full-time positions.

 

Time Required for Recess Appointment

The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over time, the Department of Justice, through Attorneys General and Office of Legal Counsel Opinions, has expressed differing views on this question, and no settled understanding appears to exist. In 1993, however, a brief submitted by the Department of Justice in the case Mackie v. Clinton implied that the President may make a recess appointment during a recess of more than three days.10 In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. This “Adjournments Clause” provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ....”

 

Pro Forma Sessions

In 2007 and 2008, the 110th Congress began new scheduling practices that appear intended to prevent the President from making recess appointments. One set of practices was implemented by the Senate alone; no unusual action or inaction by the House was necessary. A second, related set of practices, which were developed in 20011 and 2012 by the 112th Congress, arose from the lack of a concurrent resolution of adjournment, which can result from a lack of consent by either the House or the Senate. In other words, the House refused to go into recess which prevented the Senate from doing the same.

From November 2007 through the end of the George W. Bush presidency, the Senate structured its recesses in a way that was intended, at least initially, to prevent the President from making recess appointments. The approach involved the use of pro forma sessions, which are short meetings of the Senate or the House held for the purpose of avoiding a recess of more than three days and therefore the necessity of obtaining the consent of the other House. Normally, it is understood that during a pro forma session no business will be conducted.

On November 16, 2007, the Senate Majority Leader announced that the Senate would “be coming in for pro forma sessions during the Thanksgiving holiday to prevent recess appointments.” The Senate recessed later that day and pro forma meetings were convened on November 20, 23, 27, and 29, with no business conducted. The Senate next conducted business after reconvening on December 3, 2007. During the remainder of 2007 and 2008, similar procedures were followed during most other periods that would otherwise have been Senate recesses of a week or longer in duration.

The Senate pro forma session practice appears to have achieved its stated intent: President Bush made no recess appointments between the initial pro forma sessions in November 2007 and the end of his presidency.

On November 16, 2007 Senator Reid spoke on the Senate floor and discussed an upcoming recess. He noted that the Senate would be conducting pro forma sessions specifically to prevent President Bush from making recess appointments.

In February of 2008, Senate Majority Leader Reid issued a statement noting pro forma sessions that he held previously to block President Bush's recess appointments and plans that he had to do the same in the future. He also notes that he and the President had come to agreements on some people.

In May of 2008, Senator Reid issued a press statement noting that Senate Democrats and Republicans had come to an agreement with the Bush Administration on numerous appointments. He then stated that the Senate would remain in pro-forma session specifically to prevent Bush from making recess appointments.

On July 31, 2008 Senator Reid spoke on the Senate floor and asked for unanimous consent for a recess. He noted that the Senate would have pro forma sessions specifically to prevent President Bush from making recess appointments. He also noted that no business was to be conducted during these sessions.

These procedures were not used during the first session of the 111th Congress, but were again employed during the latter part of the second session; the Senate structured its 2010 pre-election break as a series of shorter recesses separated by pro forma sessions. President Obama made no recess appointments during this period.

The procedures used by the Senate during the 110th Congress supplemented the adjournment procedures typically used by the House and Senate. In each of the instances where the pro forma session practice was used during the 110th Congress, the two chambers also adopted a concurrent resolution of adjournment. In each case, the schedule of pro forma sessions was established in the Senate by unanimous consent within the terms provided for in the concurrent resolution.

During the first few months of the 112th Congress, the House and Senate passed concurrent resolutions of adjournment prior to periods of absence of more than three days. Throughout this period, the Senate did not use the pro forma session practice during the resulting recesses. During the middle of the first session of the 112th Congress, a new related practice appeared to emerge. On May 25, 2011, in a letter to Speaker of the House John Boehner, 20 Senators urged him “to refuse to pass any resolution to allow the Senate to recess or adjourn for more than three days for the remainder of the president’s term.” The letter stated that “President Obama has used recess appointments to fill powerful positions with individuals whose views are so outside the mainstream that they cannot be confirmed by the Senate of the United States,” and it referred to the Senate practices of 2007 as “a successful attempt to thwart President Bush’s recess appointment powers.” The request of the Senators appeared similarly intended to block President Obama from using the recess appointment power.

In a June 15, 2011, letter to the Speaker of the House, the House majority leader, and the House majority whip, 78 Representatives requested that “all appropriate measures be taken to prevent any and all recess appointments by preventing the Senate from officially recessing for the remainder of the 112th Congress.”

As of January 5, 2012, no concurrent resolution of adjournment had been introduced in either chamber since May 12, 2011. During periods of extended absence, the Senate had used pro forma sessions to avoid recesses of more than three days.

 

The Recess Appointments in Question

On January 4, 2012 the White House released a statement indicating that President Obama was making recess appointments for 4 posts. The recess and pro forma sessions had been provided for as part of the Senate schedule for the period of December 20, 2011, through January 23, 2012, established by unanimous consent on December 17, 2011.36 This schedule, similar to those agreed to before extended Senate breaks in earlier months, provided for a series of pro forma sessions with intervening three- and four-day recesses.

Under the requirements of Section 2 of the Twentieth Amendment to the Constitution as well as the provisions of the Senate schedule agreed to on December 17, 2011, the second session of the Senate of the 112th Congress convened on January 3, 2012. President Obama’s January 4, 2012, recess appointments, occurring during the first adjournment following the beginning of the session, would be considered intrasession recess appointments.

 

Similar Historical Appointments

Between the beginning of the Reagan presidency in January 1981 and the end of December 2011, it appears that the shortest intersession recess during which a President made a recess appointment was 11 days, and the shortest intrasession recess during which a President made a recess appointment was 10 days. 

President Harry Truman made a recess appointment at the end of the 80th Congress in an intercession recess between December 31, 1948 and January 3, 1949. During this time, the Senate was under an official adjourment that was in concensus with the House.

 

Recess Motion

On December 17, 2011 the House and Senate agreed to recess and hold pro forma sessions until January. I established the days that the House and Senate would convene to hold those short motions to prevent a recess. This motion is cited in the legal justification for the recess appointments because it notes that no work is to be performed during these pro forma sessions. It can be found in Thomas under the record numbers S8783-84.

 

Legal Justification

The legal justification for President Obama's appointments is a 23 page document written by the Justice Department that finds that the President does indeed have the power to make the appointments. It does this by considering two questions:

  • Does the President have the authority to make a recess appointment during the recess at issue here, an intrasession recess of twenty days.
  • Can Congress prevent the President from making appointments during a recess by providing for pro forma sessions at which no business is to be conducted, where those pro forma sessions are intended to divide a longer recess into a series of shorter adjournments, each arguably too brief to support the President’s recess appointment authority.

 

The recess in question is not the break between session 1 and session 2 of the 112 Congress because the House and Senate reconvened on January 3 and broke again until January 23 with pro forma sessions every three days. The President made the appoints just after this action. 

The justice department found that the President does indeed have the power to make these appointments. It concludes this by noting that the pro forma sessions are designated so that no business is to be conducted. This is supported by the fact that special instructions are left to state that any messages sent to Congress will not be addressed until Congress returns from recess. By finding that these pro forma sessions do not constitute a break up in the recess, the President obviously has the authority to appoint someone in the 20 day recess in which the Senate is not available.

The paper also finds that there is no evidence of a tradition of using pro forma sessions to prevent a “recess” within the meaning of the Recess Appointments Clause as that action on began in 2007 with the 110th Congress. It also found that whether or not the House or Senate is in recess for three days or more with or without the presence of a single Senator for pro forma sessions does not affect the practical consideration of whether or not Senate is available for advice and consent. The justice department noted that the Senate could not by rule unilaterally prevent the President from exercising his authority to make temporary appointments by declaring itself in session when, in practice, it is not available to provide advice and consent, any more than the President could make a recess appointment when the Senate was in practice available to do so. 

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