Friday, January 6, 2012

Obama's "Recess Appointments"

One of the initial things that caused me to start this, is Obama’s "recess appointments" to the “Consumer Financial Protection Bureau” (CFPB) and the “National Labor Relations Board” (NLRB).  So lets start with what is a “recess appointment”.  The President in the constitution Article II, section 2, says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law”, the key part here is the “with the Advice and Consent of the Senate” which means that the President picks a person to nominate, and then the senate confirms that person to the position.  Now the “recess appointment” is the next part which reads “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.”  You see originally congress would meet and then it would go back home for a bit before coming back, because this travel was on horseback it would take a week to travel and congress might not be around for months (and could not be called into session).  This recess appointment power was given to the president so that he may have the power to fill any critical positions needed while the senate wasn’t around.

So between March 4, 1789 when the United States Constitutional government began, until 1921 over 132 years, all but one “recess appointment” occurred between sessions of the senate.  The senate would frequently adjourn every night, and every weekend, but almost never more than 3 days at a time, but at least 60 times they adjourned for more than 3 days a time, but still no “recess appointments” were made, unless it was between sessions of the senate.  The single exception is President Johnson which made a series of appointments during a 2 and a half month senate adjournment in 1867, and an army paymaster during a 4 month senate adjournment.  This was immediately following the civil war which ended in 1865, and no one at the time even considered if these appointments were unconstitutional until 1901 in which the United States Attorney General Philander Knox at the time said that in retrospect that “the public circumstances surrounding this [1867] state of affairs were unusual and involved results which should not be viewed as precedents” and that the appointments were contrary to “the uniform practice of the Executive and the various opinions of my predecessors”.  The United States Attorney General also said that “The conclusion is irresistible to me that the President is not authorized to appoint an appraiser at the port of New York during the current [intra-session] adjournment of the Senate”.  Knox explained that in contrast to the Constitution’s use of the broader term “adjourn[ment],” the term “the Recess” refers to “the period after the final adjournment of Congress for the session, and before the next session begins.” An “intermediate temporary adjournment” during the session, “although it may be a recess in the general and ordinary use of that term,” is not “the recess during which the President has power to fill vacancies by granting commissions which shall expire at the end of the next session.“  For 20 more years after this Attorney Generals opinion no President had recessed appointed except between sessions of the senate.

Now in 1921, Attorney General Harry Daugherty came to the conclusion that in his opinion that the adjournment of the senate from August 24th to Sept 21st (28 days) was long enough to permit a recess appointment by the president.  He did not rely on the language of the constitution, or the structure of the constitution, or the history of the constitution.  He only that it was his belief that it didn’t matter if the senate was in recess or had adjourned it only mattered if the senate could give its advice and consent in a practical sense.  One in which it could not receive communications from the president or participate as a body in making appointments if it did receive one.  HOWEVER he was very clear that “Looking at the matter from a practical standpoint, no one… would for a moment contend that the Senate is not in session when an adjournment [of two or three days] is taken,” and even an adjournment “for 5 or even 10 days” could not satisfy his “practical” test.  For the next 72 years presidents seemed to follow Daugherty’s test, where at least a month of adjournment was almost always required before it became a “recess” in which the president could appoint someone.  The office of legal counsel advised Nixon against recess appointments in a week long recess, and “cautioned” Reagan against an 18 day recess appointment. 

Now in 1993 there was a brief by the Justice department that implied that the minimum time of adjournment before it becomes a recess is 3 days.  They do this primary by looking at a clause of the constitution “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.“  In the justice departments 1993 brief it states “If the recess here at issue were of three days or less, a closer question would be presented.  The Constitution restricts the Senate’s ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. ... It might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant. … Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required that number would of necessity be completely arbitrary.”  After this 1993 brief in 2007 the congress has used this to prevent President Bush from being able to recess appoint by holding “Pro forma” sessions that do nothing other than gaveling in and then out every 2-3 days.  At the time Senator Harry Reid said this: “I will keep the Senate in pro forma session to block the President from doing an end run around the Senate and the Constitution with his controversial nominations”, clearly implying that he at least believed that any adjournment of 3 days would not be considered a recess.  He also called them an “abuse of power”.  During one appointment Senator Dick Durban (D-IL) said “Mr. Pryor’s recess appointment, which occurred during a brief recess of Congress, could easily be unconstitutional.”  (this was after a 10 day adjournment)  Senator John Kerry (D-MA) said recess appointments are an “abuse of the power of the presidency”, Senator Frank Lautenberg (D-NJ) said recess appointments “bends the rules and circumvents the will of Congress.”  All of these were for appointments after at least 10 days of adjournment.

And on Wednesday January 4th 2012, President Obama has decided to ignore all of this.  He called the “pro forma” sessions of the senate a gimmick, and said that he would ignore them and appoint Cordray to the CFPB, and 3 people to the NLRB.  This is after as a senator Obama said recess appointments are “the wrong thing to do.”   A recess appointee is “damaged goods… we will have less credibility.” “To some degree, he’s damaged goods… somebody who couldn’t get through a nomination in the Senate. And I think that that means that we will have less credibility…”  And that’s for NOMRAL recess appointments were its between sessions with a long break.

There is absolutely no way that this interpretation of the constitution is valid.  To say that any adjournment no matter how small is a recess in which the president can appoint whomever he wants is to totally remove any power that the senate has to confirm as required by the constitution.  After all the people in the senate have to go to sleep eventually right?

In federalist #67, says the recess appointment power is “to be nothing more than a supplement to” the Appointments Clause, for use when “it might be necessary for the public service” to fill without delay certain vacancies that “might happen in [the Senate’s] recess.” The Recess Appointments Clause is needed because “the ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate.”  The strong implication is that because the ordinary power of appointment is can only be used during the session of the senate, that the recess appointment power is needed for times outside of the session of the senate (between sessions).  This was the opinion and policy of the federal government for the first 132 years, and it’s the only valid constitutional interpretation taking into account the history of recess appointments.

What This Will Be About

So first things first let me talk about what I want this to be about.  So I find it so interesting to do research on various little historical tidbits about the constitution, our founding fathers, and other critical historically important things.  I consider myself a fairly strict originalist constitutionalist, in that I believe we must follow the constitution, as it was originally intended.  This unfortunately means occasionally digging through old records of historical arguments about what the constitution meant to the people who ratified it, or to the people that ratified amendments to the constitution.  I will do my best to make these things as “not boring” as possible.

Which gets me to a point I am sure to talk about a bit more latter, given the constitution is vague in areas, what to do to resolve those ambiguities.  I strictly reject the “living constitution” definition that I believe means the constitution means whatever you want it to mean.  But if we are to look at history, who’s interpretation of the meaning should we take to be the most relevant?  Is it the drafter?  The congress who debated and approved it?  The people who ratified it? Or the people themselves as they would have believed it to mean when it was announced?  I tend to draw from all of these sources to varying degrees, although the least is probably the drafter as he is just the person who wrote the initial words.  Scalia would take the words as promulgated (announced), and the interpretation of what the “common man” at the time would believe those words to mean.  This is probably one of the most important indications of the “original meaning”, but it is often hard to tell for sure or be able to prove this.  Luckily many of the debates of the time were written down and we still have those which I find an invaluable tool to learn what the founders really meant.  And of course the federalist papers, being the argument in favor of the constitution, but BEFORE the constitution was ratified, are an invaluable tool to learn why the people ratified the constitution and what their intent was.  I talk about this to give you a setup of some of the sources that I will be pulling from, and why I think they are important.

If you didnt catch the reason for the name, its from the quote from Thomas Jefferson that "In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."