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January 06, 2012 3:37 PM Is It a Recess? Who Decides?

By Jonathan Bernstein

I’ve seen one argument on recess appointments that is worth knocking down right away; it’s made by liberal Tim Noah over at TNR, and conservative John Yoo at NR: that Congress, and not the president, get to decide whether or not Congress is in “recess” when it is not actually meeting.

There’s simply no Constitutional support for that at all. The clause about recess appointments is in Article II, for whatever that’s worth (that is, the article about the president, not the Congress). It just talks about “the Recess of the Senate.” That’s it. There’s no definition at all about what “counts” as a recess, or whose job it is to say what counts.The word “recess” only comes up one other time in the Constitution, in a (now-obsolete) similar clause about state legislatures and U.S. Senate appointments. There’s nothing at all about who gets to define recess.

Here’s what Yoo says:

President Obama is making a far more sweeping claim. Here, as I understand it, the Senate is not officially in adjournment (they have held “pro forma” meetings, where little to no business occurs, to prevent Obama from making exactly such appointments). So there is no question whether the adjournment has become a constitutional “recess.” Rather, Obama is claiming the right to decide whether a session of Congress is in fact a “real” one based, I suppose, on whether he sees any business going on.
This, in my view, is not up to the president, but the Senate.

This may be Yoo’s position, but it would be a break with precedent. As Yoo knows (since he refers to it in his article), the current three-day minimum standard is derived from a Clinton-era Justice Department opinion. Not the Senate. The Justice Department.

Of course, Yoo and Noah could still be correct that the decision should rest with the Senate. But the Senate has never, as far as I know, made any such determination. There are various minor technical differences between the various times that the Senate is out of session (intersession, between different Congresses, overnight/weekend intrasession, and longer intrasession), but the the Senate generally does not use different vocabulary for them, and certainly does use the word “recess” for the breaks relevant here. The Senate does not, in any official way, announce that they are now in recess for the purpose of the Constitutional appointments clause.

Moreover, even if it were up to the Senate, we know that the Senate Majority Leader, and presumably the majority of the Senate, support the president’s recess appointment. Surely Yoo doesn’t believe that the Speaker of the House has a Constitutional role to play in determining whether a recess counts as a “Recess of the Senate”?

Granted, I wouldn’t say that it must be a real Recess just because the president and the Majority Leader agree that it is; they could certainly be wrong, either honestly or cynically.

The actual issue here — how long does a recess of the Senate have to be before it counts as a Recess of the Senate for these purposes — is legitimately contentious, because we don’t really have any guidance for what “recess” means in this context. That’s why I’d like to see exactly what the WH is relying on (as Kevin Drum said Wednesday). And while I believe I agree with the decision, I think there’s plenty of room for legitimate disagreement on substantive grounds. But as far as the procedure, I just don’t see it as a problem for the White House to have its own interpretation of a vague Constitutional clause in cases where precedent doesn’t apply. There’s no reason for the president to defer to Congress on the definition.

[Cross-posted at A plain blog about politics]

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Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.
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Comments

  • H-Bob on January 06, 2012 3:42 PM:

    A "Recess" is an extended period when the Senate does not conduct business. Article I, Section 5 says that a majority of the Senators constitutes a quorum for conducting business. There definitely is not a quorum during the "pro forma" sessions and the Senate Republicans alone cannot muster a quorum. Since the Senate cannot and will not conduct business for several weeks, that is a "Recess" for constitutional purposes, particularly the Appointments clause.

    The "pro forma" sessions are invalid since no business can be conducted and probably puts the Senate in violation of the constitutional requirement to be in session on January 3rd of each year. However, I'm not sure who could have standing for judicial review of that issue.

    Another argument is that the House and Senate are in disagreement about adjournment because the House doesn't want to let the Senate adjourn for more than three days. Article II, Section 3 allows the President to resolve such disputes and permit him to adjourn the Senate (or declaring that the Senate is in recess).

  • Big Dog on January 06, 2012 7:07 PM:

    The Constitution allows the Senate to decide when it is in recess under Section I Section 5 where it states each House shall makes its own rules of its proceedings.

    Whether or not the Senate has made such a rule is another matter but it certainly has the Constitutional authority to do so.

  • RalfW on January 07, 2012 8:43 AM:

    Given John Yoo's horrible role in legitimizing torture by a US administration, I take any legal posturing he makes now with a massive dose of salt.

    And it is rich, very rich that this man who was part of an administration that asserted huge new areas of administrative power and prerogative is now mewling about Obama making a recess appointment. How many did Bust II issue?

    What's that? 171 of them? Aha. Okay, so Yooo is full of $#!+, huh.

    (ETA: captcha is craptcha)

  • EJS on January 07, 2012 5:38 PM:

    So the author of the "torture is not really torture" and "the President is not bound by any laws during a time of war" memos, John Woo, is now just a "conservative" at NR (which could just as easily be the New Republic these days as the "National Review)?

  • Neil Bates on January 07, 2012 7:41 PM:

    Big Dog, making "rules" doesn't imply unlimited right to make "claims" about the status of what one is doing, nor to supersede implications of what the US Constitution has already said. I think H-Bob is right, and since a "quorum" for doing business has been defined, a President or other outside party may consider the Senate to "not be in session" for Constitutional purposes, any time a the quorum requirement is not met. In any case, the Majority Leader of the Senate would support the President this time around, and presumably could indicate by simple majority vote (which would be in the President's favor), so the Senate cannot be considered yet to object to the President's regarding, anyway.

    I give Yoo, creepy as he is, credit for at least explicitly laying out why the Republicans are pretending to meet, which itself is yet another grounds for denying them legitimacy.