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Proroguing the Congress

The Supreme Court wimped out on the recess appointment power today.

It ruled, unanimously, that President Obama had overstepped his powers when he made three recess appointments to the National Labor Relations Board while the Senate was holding pro-forma sessions. In other words, the Senate, not the president, gets to decide when it is in session.

I have not yet read the opinion, which is a long one, but five justices (the four liberal ones and Justice Kennedy), decided to sustain the long-standing practice of presidents making appointments during intra-session recesses (for holidays, etc.) not just inter-session recesses when the Senate has recessed sine die (Latin for “without a day,” i.e. without setting a date to resume). It also ruled that vacancies don’t need to occur during the recess to be filled by the recess appointment power. Again, this is long-standing practice, but it is not what the Constitution says.

The recess appointment clause (Article II, Section 2) says that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, …” and the D.C. Court of Appeals had ruled that it meant what it said: “the recess,” not “a recess,” and vacancies must occur during the recess, not simply exist during the recess. In today’s world, the recess of the Senate is very short. They rarely adjourn before the middle of December and the next session begins, under the 20th Amendment, on January 3. Had the Supreme Court followed that reasoning, and four justices led by Justice Scalia argued forcefully that it should have, the recess appointment power would have been, for all intents and purposes, dead.

Now the long-standing but unconstitutional practice has the imprimatur of the Supreme Court. All sorts of mischief can occur as a result. If the presidency and the two houses of Congress are in the hands of one party, there’s no problem. But if the Senate is in the hands of the other party, it can prevent recess appointments only by staying in pro-forma sessions. If the Senate is in the hands of the president’s party, but the House is not, as is the case presently, then the House can prevent a recess by simply staying in session itself. Neither house can adjourn for more than three days without the agreement of the other house (Article I, Section 5).

But there’s a little noticed clause in the Constitution (Article II, Section 3) that says, “… in Case of Disagreement between them [the two houses], with Respect to the Time of Adjournment, he [the president] may adjourn them to such Time as he shall think proper; …” As far as I know, this power has never been exercised. But here’s a scenario. Obama wants to appoint someone who would have trouble being approved by the Senate, so Harry Reid moves to adjourn the Senate for a week, the House refuses to go along, and the president then adjourns them for two weeks, and appoints his man.

The king of England lost his power to prorogue Parliament in the Glorious Revolution of 1688. The Supreme Court may well have given it back to the president of the United States.



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