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Jonathan Bernstein: How Obama Should Get Tough With Congress on Recess Appointments


How Obama Should Get Tough With Congress on Recess Appointments: Throughout 1903, the Senate minority was blocking several nominations put forth by the White House. President Roosevelt should have been able to wait for that Congressional session to adjourn and make his recess appointments before the next session was scheduled to begin, by Constitutional mandate, on December 7 of that year. However, House Speaker Joe Cannon refused to go along, keeping the House in session throughout the break.

In response, the Senate leadership concocted a plan. On the big day of December 7, the Senate convened, adjourned, and immediately began an entirely new session. As The New York Times report had it the next day:

The conclusion has been reached that between the time of the falling of President pro tempore Frye’s gavel signifying the conclusion of the extraordinary session and the calling to order of the Senate in the regular session of Congress, an appreciable lapse of time occurred. In this time the appointments technically were made.… There was but one fall of the gavel, but one stroke, and but one sound.

And in that instant, Roosevelt made 168 military promotions that normally would have to have been approved by the Senate, as well as “about 25 civilian appointees.” 

Was it legal? No one knows with certainty, as it wasn’t adjudicated in the courts. Two years later, a Senate report concluded that it wasn’t allowable, but that was just the institution defending its own prerogative. It’s pretty unlikely, meanwhile, that the Supreme Court would want to get involved in a squabble between the other two branches, and even if it did the Court hasn’t exactly been reluctant recently to side with the presidency. Not to mention that recess appointments have limited duration to begin with; it’s unlikely that the Court would rule before the terms expired, anyway.

But even if Obama doesn’t prefer the example set by Roosevelt, he has other options. There’s an unused Constitutional provision giving the president the power to step in when the chambers cannot agree on adjournment: He could thus block House Republicans’ efforts to prevent a recess by siding with Senators’ preference for a normal adjournment. Or, he could simply declare that in the present circumstances a long Senate recess punctuated by brief pro forma sessions every three days is still a “Recess of the Senate” in his opinion, and therefore sufficient for his Constitutional recess appointment power to kick in. While there is no Supreme Court ruling on the issue, a lower court ruling appears to support him should he choose to go that route.

The broader point, however, is that presidents do not have to sit back helplessly in the face of innovative and unprecedented congressional obstruction…. [P]residents are perfectly entitled to make use of whatever legal and Constitutional options are available….

Barack Obama sought to call on the spirit of Teddy Roosevelt in his Osawatomie speech. If he really wants to emulate TR, however, it’s time for some recess appointments.