OVERBREADTH

It’s almost Thanksgiving and although many may take off for the holiday, I for one am inspired by the commitment of the Senate to work through the holiday. No, I won’t be doing what employers might traditionally call “work,” nor will I be, technically, showing up at the office. But, in keeping with the Senate’s approach, I’ve appointed a member of the cleaning staff to read a thirty-second statement when he stops by my office. It says, in essence, that he’s been fully delegated to perform my duties for a pro forma work day and that, at present, all work presently in progress will be delayed until after the holiday. Oh, and that he doesn’t need to vacuum my office. (I thought it fair.)

What’s the Senate up to? If you haven’t already heard, the Senate held its first of four “pro forma” sessions yesterday, sessions “as a matter of form” only: just one Senator (Sen. Jim Webb) with a skeleton staff, no pages, no Pledge of Allegiance, and not even an opening prayer (score one for separation of church and state). The whole thing took thirty seconds. What’s the point, you ask?

The whole thing relates to several ambiguities regarding the President’s recess appointment power. U.S. Const. art. II, § 2, cl. 3 (annotations here). Normally, of course, the President may make appointments only “by and with the Advice and Consent of the Senate.” U.S. Const. art. II, § 2, cl. 2. Absent a recess appointment power, the Advice and Consent clause might translate to a limitation that the president cannot, for example, appoint an ambassador to the U.N. who is of the intriguing view that there is no such thing as the United Nations (see, e.g., John Bolton), or appoint an ambassador who capsized a democratic presidential bid by financing a swift-boat advertisements “riddled with inconsistencies,” (see, e.g., Sam Fox).

But if it’s the President’s power to make recess appointments, it’s the President’s power, right? Well, not necessarily. Presidents have been reading the recess appointment power in an increasingly broad manner, so maybe it’s fair for the Senate to call shenanigans and start some procedural retaliation.

To understand what I mean, let’s start with the text: “The President shall have Power 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.” U.S. Const. art. II, § 2, cl. 3. That language leaves open several things, for starters, “Vacancies that may happen during the Recess.” When does a vacancy happen? What if the vacancy occurs before a recess and carries on into the recess? Is that still a vacancy “happening” during the Recess?

Modernly, Presidents and Attorneys General have taken the view that the a vacancy “happens” as long as it’s still vacant, reading the clause as “Vacancies that may happen [to exist] during the Recess.” Returning to the John Bolton example, his appointment filled a vacancy created during a session of the Senate that perpetuated into a recess. (Or was it a recess? More on that next paragraph.) But in my view, that amounts to a strange interpretation. (Consider a conversation like this: “I noticed apartment 502 is vacant. When did that happen?” Answer: “It’s still happening.”) I prefer the view that a vacancy happens when the position becomes vacant. (And I’m not alone either. Apparently President Washington believed on the advice of his Attorney General that he could not make a recess appointment to a position that had become vacant during a session of the Senate.)

While we’re at it, what is a “Recess” anyway? Does that mean a break between entire Congresses (e.g., from the 109th to the 110th Congress), or a break of some predetermined length of time? Can it possibly mean any time Congress is not actively in session, like a weekend or even a lunch break? Remember recess in elementary school? The Constitution provides no glossary, and despite strong support for the view that “recess” historically meant inter-session breaks of Congress, not intra-session breaks (see this article by Michael Rappaport), modern presidents have not followed any such limitation. In fact, the timing of the Senate’s pro forma sessions to prevent greater than three-day breaks is apparently inspired by a Department of Justice brief, Mackie v. Clinton, Civil Action 93-0032-LFO, July 2, 1993, and may be the first modern agreement between the legislative and executive branches on the constitutional minimum duration for a recess appointment.

So, for those who complain of a do nothing congress, take note. It took two-hundred years for the executive branch to turn the recess appointment power into an any-vacancy-existing-and-any-recess-duration power. It took Democrats only thirty-seconds to undo it.

Tags: Law and Disorder //