The Recesses of Recess

A federal appeals court has ruled invalid the three recess appointments to the National Labor Relations Board President Obama made on Jan. 4, 2012. (My birthday, as it so happens.) The basics of the situation are pretty well known.  During this time period, the Senate was holding pro forma sessions during which almost no members were present.  The court ruled that these sessions implied that the Senate was not in recess, implying that the recess appointments clause (Article II, Section 2, clause 3) of the Constitution does not apply.  One can certainly debate whether the court’s reasoning is correct, but that’s not my goal here.

Rather, I just wanted to point out an interesting aspect of this scenario.  In 2012, the Democratic party held a majority of the seats in the Senate.  Accordingly, it seems reasonable to think that President Obama’s nominees would have been confirmed if the Senate had voted on them.  They did not vote on them at least partly because there weren’t enough votes (60) to invoke cloture on their consideration.  (I say partly because cloture is a costly process, so I don’t want to imply that cloture would have been invoked on these appointments even if the Democrats did have “the votes.”)

A motion to adjourn requires only a majority vote in the Senate and, more importantly, is not  subject to debate (so it can’t be filibustered).  Accordingly, viewed within the Senate rules, a “weak confirmation option” is available to the majority party: if a nomination is being (or will be) filistered by the minority, the majority could just adjourn and let the president fill the positions (albeit temporarily) with the recess appointment power.  (Of course, this comes with the concomitant risk that the president might similarly fill other positions at the same time, but let’s set that aside.)

In the case at hand, the Senate did not do this.  Instead, it was operating under a unanimous consent agreement that called for the Senate to hold pro forma sessions every third day.  At least part of the reason it did this is the requirement (Article I, Section 5, clause 4) that neither chamber recess more than 3 days without the permission of the other.  (Which, to be honest, is a bit of an odd requirement in a number of ways.)

Thus, to the degree that a Senate’s “recess” must be longer then 3 days to trigger the president’s recess appointment powers, the filibuster and Article I, Section 5, clause 4 of the Constitution combine to give the House of Representatives the power to stymie the president’s ability to fill positions that require the advice and consent of the Senate.  Of course, the Senate’s difficulty in this regard is self-imposed (i.e., its self-imposed supermajority requirement to end debate), but I’ll leave that well-worn topic for another day.

In concluding, I leave you with this.