How To Resolve The Recess Appointment Crisis: An Elegant Legal Solution
On Jan. 4 President Obama made several recess appointments, in effect making an independent judgment that the Senate is in recess. Senate Republicans howled in indignation that the Senate is not in recess; they’d pressured the Democratic majority to keep the Senate technically in session in order to prevent the president from appointing Richard Cordray (or anyone) director of the Consumer Financial Protection Bureau. (Cordray was one of the people Obama appointed yesterday.) One of us (Timothy Noah) wrote yesterday that Obama had unaccountably failed to take advantage of a brief window on Jan. 3 when the Senate unambiguously was in recess, but Noah was wrong. No such window appeared. (TNR’s Jon Cohn just explained why.)
So the country is left with a Hobson’s choice: Allow the president to decide when the Senate is in recess, which would appear to be unconstitutional, or allow the Senate to deny the president the ability to make recess appointments…which would also appear to be unconstitutional (or, if not strictly unconstitutional, surely unreasonable and unprecedented). It’s possible, however, to find a way out of this mess: Here’s how.
In the past, the question of what’s a Senate recess and what isn’t has been worked out through agreements between the executive branch (typically the attorney general’s office) and the Senate. If the constitutional problem with Obama’s appointments is that they depart from this tradition, why not get the Senate—which, after all, has a Democratic majority—to sign on?
Senate majority leader Harry Reid has said he supports Cordray’s appointment, which implicitly means that he thinks the president is acting within his constitutional powers. Given the Senate’s elaborate system of parliamentary checks on the power of the majority—most significantly, the much-abused filibuster—it’s unlikely Reid could pass a resolution formally stating the Senate’s agreement that it is in recess, or the practical equivalent. But the Senate doesn’t need to act in any official capacity. A letter would suffice, signed by 51 senators stating that the president is entitled to make a recess appointment when the Senate actively denies him that constitutional power through procedural gimmicks—defined however they like, or not defined at all, if they prefer.