Obama's Recess Appointments

Douglas Laycock

January 6, 2012

While Congress was out of town this week, President Barack Obama appointed a director to lead the newly created Consumer Financial Protection Bureau, as well as three members of the National Labor Relations Board.

The Constitution empowers the president 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."

Yet Obama's move is sparking controversy, as it came despite a "pro forma" session in the Senate, in which a single senator essentially gavels the body to order for a moment before ending the session without conducting any business. The practice, notably also used toward the end of the George W. Bush administration, aims to prevent the president from making recess appointments.

Was Obama's decision to make the recess appointments despite the pro forma Senate session legal?

University of Virginia law professor Douglas Laycock, an expert in constitutional law, law and religion, and remedies:

"I think that this is a fight between the political branches and the courts should not try to make one side play nice when they are in no position to make both sides play nice. The Republicans have abused the confirmation power by refusing to permit votes and using the filibuster to shut down whole agencies. The president has responded by doing something that would be an abuse of the recess appointments power — except that it is in defense of his nomination power and of his duty to take care that the laws be faithfully executed; it is in direct response to the abuse of the confirmation power.

The courts cannot make the Senate vote in good faith on nominations, and they should not void the president's recess appointments. They should let the political branches fight it out. This isn't what the recess appointment power was designed for, but it isn't what the confirmation power was designed for either. Both sides are stretching their powers for political reasons, and this sort of conflict is built into the separation of powers."

Saikrishna Prakash

UVA law professor Saikrishna Prakash, an expert in constitutional law, constitutional theory and presidential powers:

"I think this is a hard question, one clouded by the politics of the moment. The whole dispute turns on whether the Senate is actually in recess. During the Bush administration, the Senate seems to have adopted the practice of using sham sessions as a means of preventing the president from making a recess appointment. This practice continued under President Obama.

Apparently, President Obama decided that the sham sessions do not count as real ones for purposes of the Recess Appointments Clause. Lawyers in the Bush administration came to the same conclusion.

The question yields no easy answer because while one could agree with the approach of the Obama administration, one could just as easily conclude that the Senate is in session, even as it conducts no meaningful business. After all, the Senate is in session as a formal matter and perhaps work could get done if members were around."

Is It Legal? is an occasional feature in which UVA law professors weigh in on legal aspects of current events.

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