Playing nice during recess

“You know, you look at him and you think, this guy’s not some­body who’s going around pick­ing fights”

— Pres­i­dent Obama

on Rich Cordray

“This recess appoint­ment rep­re­sents a sharp depar­ture from a long-standing prece­dent that has lim­ited the Pres­i­dent to recess appoint­ments only when the Sen­ate is in a recess of 10 days or longer.”

— Sen. Mitch McConnell

Pres­i­dent Obama was in Ohio this week, speak­ing in the Cleve­land area about the state of the nation’s econ­omy. He sur­prised reporters (and no doubt Con­gres­sional Repub­li­cans as well) when he announced that he was appoint­ing for­mer Ohio Attor­ney Gen­eral Richard Cor­dray as head of the new fed­eral con­sumer finan­cial pro­tec­tion bureau.

Obama had pre­vi­ously nom­i­nated Cor­dray to the post, but the nom­i­na­tion never came to a vote in the U.S. Sen­ate. Instead, the Pres­i­dent installed Cor­dray to the post tem­porar­ily through what has come to be known as a “recess appointment.”

Under the pro­vi­sions of Arti­cle II, sec­tion 2 of the United States Con­sti­tu­tion, the Pres­i­dent has the author­ity to “fill up all Vacan­cies that may hap­pen dur­ing the Recess of the Sen­ate, by grant­ing Com­mis­sions which shall expire at the End of their next Ses­sion.” Lit­tle is said in the orig­i­nal writ­ings of the Found­ing Fathers about the spe­cific way in which this power was to oper­ate. What is clear is that the man­ner in which Con­gress meets is far dif­fer­ent in today’s world of air­line travel than it was in the late 18th Cen­tury. Con­gres­sional recesses were sig­nif­i­cantly longer in those days and the pro­vi­sion allow­ing recess appoint­ments pre­vented gov­ern­ment offices from being vacant for long peri­ods of time.

Recess appoint­ments are not rare. In his eight years in office Pres­i­dent Clin­ton made 139 recess appoint­ments. In his eight years, Pres­i­dent Bush made 171. Cor­dray is the 29th recess appoint­ment made by Pres­i­dent Obama. The ques­tion of just what con­sti­tutes a ‘recess’ and a change made in the way recesses are taken dur­ing the Bush admin­is­tra­tion make the recess appoint­ment of Cor­dray one to take notice of.

The Con­sti­tu­tion does not specif­i­cally define a ‘recess’ nor does it say how long a recess has to be in order for the Pres­i­dent to make appoint­ments dur­ing it. What the Con­sti­tu­tion does pro­vide is that nei­ther House of Con­gress can be in recess for more than three days with­out the per­mis­sion of the other House. In 2007 Sen. Harry Reid stated that the Sen­ate would sim­ply not go into recess in order to pre­vent Pres­i­dent Bush from mak­ing recess appoint­ments. Accord­ing to the Con­gres­sional Record, Sen. Byrd had threat­ened the same tac­tic dur­ing the Rea­gan admin­is­tra­tion and Repub­li­can Sen­a­tors had made sim­i­lar rum­blings in the Clin­ton years.

For the last two years of Bush’s Pres­i­dency, the Sen­ate held pro forma ses­sions in which short meet­ings were held but no sub­stan­tive busi­ness was con­ducted or votes taken. Because of this, accord­ing to the Con­gres­sional Research Ser­vice, Pres­i­dent Bush made no recess appoint­ments from Novem­ber 2007 until the end of his term in Jan­u­ary of 2009. The Depart­ment of Jus­tice none the less con­cluded that the Pres­i­dent could make a recess appoint­ment dur­ing any recess of three days or more.

Turn­ing the polit­i­cal tables, the House of Rep­re­sen­ta­tives has recently refused to pass con­cur­rent res­o­lu­tions to allow the Sen­ate to go into for­mal recess. As such, the Sen­ate has been hold­ing pro forma ses­sions over the hol­i­days in order to avoid vio­lat­ing the Con­sti­tu­tion by recess­ing with­out the approval of the House. Appar­ently con­clud­ing that these pro forma ses­sions are not for­mal ses­sions, the Pres­i­dent has made the recess appoint­ment of Cordray.

Sen­a­tor Minor­ity Leader Mitch McConnell said Wednes­day, “This recess appoint­ment rep­re­sents a sharp depar­ture from a long-standing prece­dent that has lim­ited the Pres­i­dent to recess appoint­ments only when the Sen­ate is in a recess of 10 days or longer.” He’s par­tially right. Cordray’s appoint­ment is cer­tainly a depar­ture from prece­dent, though he has his num­ber of days wrong. Still, appoint­ments dur­ing a recess of less than three days are not entirely unheard of. In 1949 Pres­i­dent Tru­man made an appoint­ment to the Civil Aero­nau­tics Board dur­ing a shorter recess and in 1903 Pres­i­dent Roo­sevelt made more than 150 mil­i­tary appoint­ments dur­ing a recess that lasted just a few hours.

Cordray’s appoint­ment will last until the “next ses­sion” of Con­gress is over. The next ses­sion begins on Jan. 23 and will end some­time in Decem­ber. The appoint­ment essen­tially lasts, there­fore, until just a few weeks before the end of the President’s term of office. Whether any action is taken to chal­lenge the appoint­ment remains to be seen.

David Hej­manowski is a Mag­is­trate and Court Admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer Assis­tant Pros­e­cut­ing Attorney.

Posted by Dave Hejmanowski on Jan 6 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.