By Jonathan Turley, Progressive, Constitutional Law Professor, George Mason University School of Law
The recess appointment of Richard Cordray has produced what appears to be the intended political response. The White House wanted to highlight the GOP blocking not just the head of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board. Over the last few days I have been called by various media outfits for a supporting view of the recess appointment of Cordray. However, I do not support the appointments and believe they raise serious constitutional problems.
First let me begin by saying that the blocking of Cordray is wrong and itself raises questions over the dysfunctional effect of the filibuster power. Moreover, the Senate has continued to use its own abusive unchecked powers like blues-slipping, which I have long criticized with recess appointments.
The Cordray controversy, however, combines the controversial use of filibustering with the controversial practice of recess appointments — a perfect storm of dysfunctional actions by both parties. I was highly critical of recess appointments during the Bush administration. These appointments, particularly of judges, circumvents the constitutional process and represents an unchecked power with limited textual support in the constitution. This case in particular is a clear effort to deny the Senate its authority to share the power of appointment of high-ranking officials. It has nothing to do with the merits. I like Cordray, but circumventing the Constitution is no solution to a political stalemate.
Recess appointments do have support in the Constitution. Article II, Section 2 of the U.S. Constitution states:
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.
The power, however, is ill-defined and there has long been a debate over its scope. When this clause was first put into effect, it was common for recesses to last six or even nine months at a time. That made such appointments a practice necessity. In modern times, it has been used openly to circumvent opposition in Congress — something that was not the intention of the Framers in my view. Bush uses the power to appoint John Bolton — circumventing well-reasoned objections to his appointment to the United Nations. However, Democrats have to stop citing the Republicans as precedent when they vehemently objected to the same practices. If it was wrong then, it is wrong now. Indeed, the brief length of this “recess” makes this a particularly wrong-headed move.
The long practice of judicial appointments is particularly obnoxious in my view. In 2000, Bill Clinton gave Roger L. Gregory a recess appointment to the Fourth Circuit. (He was later renominated Gregory and secured confirmation). In 2004, Bush recess appointed Charles W. Pickering to the U.S. Court of Appeals for the Fifth Circuit and William H. Pryor to the Eleventh Circuit Court of Appeals. I have long argued that the Senate should adopt a rule that it would vote against the later confirmation of any judge given such a recess appointment on principle. Citizens are entitled to the guarantee of a federal judge confirmed by the Senate and given life tenure.
The dangers of such appointments is made evident by George Washington’s appointment of South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. I have previously written about Rutledge — a man who was demonstrably deranged, later rejected by the Senate, and attempted suicide.
The Justice’s Office of Legal Counsel in 1989 indicated that presidents cannot make recess appointments during Senate breaks of less than three days — a long-standing guiding principle. For that reason, Congress decided not to break for more than three days this year — a decision clearly within the power of members. In this case, the House refused to consent to the Senate adjourning for more than three days, which is its perogative under the Constitution. Neither house can adjourn without the consent of the other under Article I, Section 5.
Once again, I believe Democrats are blinded by the immediate political controversy and not considering the long-term implications of such appointments. Previously, some of these same members (including Senate Majority Leader Harry Reid (D-Nev.)) used precisely this power to block recess appointments by President Bush.
While this pro forma session may seem like dirty pool, it is clearly constitutional. Moreover, it was not entirely pro forma since three days after into the session, Congress passed the President’s demand for a two-month payroll tax holiday.
Once again, I am generally opposed to modern recess appointments designed to circumvent political opposition in Congress. However, this is different. If this is a valid recess for such appointments, a president could circumvent the process with the slightest interruption of sessions. Is that the precedent Democrats want to establish. President Obama has already surpassed Richard Nixon in the development of an imperial presidency of unchecked executive powers.
The Framers laid out a detailed process for the appointment and confirmation of officials as a shared power of both the legislative and executive branches. It has rarely been a smooth relationship — shared power often produce tensions whether between siblings in a family or sister branches in a tripartite government. The framers understood and expected such tensions. They used the rivaling interests of the branches to serve as checks and balances. The Administration does not like the fact that the Senate is withholding its consent. However, that is like complaining about the weather. You can rage at the rain or find shelter in our system through compromise.
There is a good chance that a federal court would again avoid such a constitutional challenge by saying that it is a matter for the political branches to work out. Courts have increasingly avoided their responsibility to answer such questions by deferring to the political process when this practice undermines the political process established by the Framers. What is clear is that the President has a recess appointment power and the question is whether there is truly an implied period after which this power may be constitutionally used. That is a difficult question given the ambiguity of the text. However, it is not a close question in terms of the dysfunctional role played by this practice, in my view. It is not something that should be applauded merely because it puts the opposing party in a tough position or fits with a campaign theme.
It seems that this is a good fight to have politically for the White House and certainly it highlights a wedge issue with the GOP. However, it is not good for the Constitution or, in the long run, the country.