Call the Senate's bluff on recess appointments
By Steven G. Bradbury and John P. Elwood
Friday, October 15, 2010
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In a 1905 report that the Senate still considers authoritative, the Senate Judiciary Committee recognized that a "Recess of the Senate" occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot "participate as a body in making appointments." The committee cautioned that a "recess" means "something actual, not something fictitious." The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question "is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word 'recess' a technical and not a practical construction, is to disregard substance for form."
The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president's nominations. That means the Senate remains in "recess" for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.
The president should consider calling the Senate's bluff by exercising his recess appointment power to challenge the use of pro forma sessions. If the Senate persists, then the federal courts may need to resolve the validity of the Senate's gambit.
The alternative will likely be greater gridlock in Washington. This practice will inevitably become the standard operating procedure, and the recess appointment power could become a virtual dead letter -- undermining what the Founders viewed as an essential tool for the effective functioning of our government.
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The writers are Washington attorneys. From 2005 to 2009, Bradbury headed the Office of Legal Counsel in the Justice Department, and Elwood served as deputy assistant attorney general. Although Bradbury was nominated as assistant attorney general in 2005, his nomination was never voted on by the full Senate. Individual senators put holds on the nomination, and Senate leaders instituted pro forma sessions to prevent a recess appointment.
Call the Senate's bluff on recess appointments
