Last Friday, Assistant Attorney General Virginia A. Seitz released an opinion letter titled, “Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions.” The letter addresses the concerns many people have, including the Senate, as to the Constitutionality of President Obama’s recently announced intent to make four recess appointments during the first adjournment following the beginning of this year’s first session.
The Office of Legal Counsel (OLC) was asked specifically to analyze whether the President has authority under the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3, to make recess appointments during the period between January 3 and January 23, despite the fact that the Senate was, and is, still holding periodic pro forma sessions. The opinion released by Seitz advised that the President does in fact have that power.
Under the Constitution (article II, §2, clause 2), the President and the Senate share the power to make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions. The President nominates individuals to these positions, and the Senate must confirm them before he can appoint them to office.
A “recess appointment,” the exception to the rule stated above, is an appointment made by the President while Congress is not in session. The person appointed by the President assumes his or her appointed position without the approval of the Senate. The appointee then must later be approved by the Senate by the end of the next session of Congress, or when the position becomes vacant again.
Now, as to the technicalities recess appointments, the Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. In the 1993 case Mackie v. Clinton, the Department of Justice (DOJ) submitted a brief linking the minimum recess length language in the Recess Appointments Clause with the language in the Adjournments Clause, U.S. Const. art. I, § 5, cl. 4. This clause provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ….” In making this link, the DOJ implied that the President may only make a recess appointment during a recess of more than three days.
Now, pro forma sessions are short meetings of the Senate or House held for the purpose of avoiding a recess of more than three days, and therefore, the necessity of complying with the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other. Through the use of pro forma sessions, the Senate never technically goes on recess, therefore, the three days the President is waiting for to make those appointments he knows will never be confirmed by the Senate, will never come. The Senate uses this creative, ingenious tool to block all presidential recess appointments it does not approve of.
Although the Senate may seem like the sneaky one here, it is merely trying to follow the original intent of the Founding Fathers in having a Recess Appointments Clause in the Constitution. The appointment power stated therein was to be used solely for the purpose of granting the President the authority to fill vacancies that actually occurred during a Senate recess. Presidents, on the other hand, have traditionally applied a much more liberal interpretation, using the clause as a means of bypassing Senate opposition to controversial nominees. Presidents often hope that opposition to their recess nominees will have lessened by the end of the next congressional session when their appointees must actually gain approval by the Senate or fail to retain their position.
The recess and pro forma sessions for the Senate had been set as part of their schedule on December 17, 2011, established by unanimous consent, for the period of December 20, 2011 through January 23, 2012. This schedule provided for a series of pro forma sessions with intervening three- and four-day recesses.
On January 4, 2012, during a three day recess between two pro forma sessions of the Senate, the White House announced President Obama’s intent to make four recess appointments. The appointments then took place shortly after the second session of the 112th Congress convened during an intrasession recess (a recess taken while Congress was still technically in session).
This Congress, and other Congresses past as well, have held pro forma sessions every three days during a recess not solely for the purpose of obeying the Constitution, but also to stop a president who would want to try and make a recess appointment, thereby avoiding the usual Senate appointment process. According to the Assistant Attorney General, this tactic can no longer be used for that purpose.
“Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable” to view nominees and make appointments at that time.
Seitz ended her letter with the words, “We conclude that while Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess.” Therefore, under the current administration, it appears that it would not be altogether shocking to see President Obama squeeze out a few more last minute appointments during an upcoming intrasession recess as there is no longer anything in place to stop him.