Wednesday, November 21, 2007

Pro-Forma

Despite the upcoming Thanksgiving holiday, the United States Senate was in session yesterday -- for 30 seconds. Senator Jim Webb of Virginia gaveled the Senate into session, had the clerk read a vital communication to the Senate (namely, the one from Senate President pro tempore Robert Byrd, appointing Webb to the Chair for the day), and then announced that under the previous order, the Senate would stand in recess until Friday. Bang went the gavel again, and the Senate officially receded.

Why this little bit of theater? It's all a plan to block President Bush's ability to make recess appointments. Under the Constitution, the President has "Power to fill up all Vacancies that may happen during the Recess of the Senate" by making a "recess appointment." By holding these pro-forma sessions, the Senate, technically, is not in a sufficient "recess" to justify the use of the recess appointment power.

The question of just how long a recess has to be before the recess appointment power kicks in is unsettled. I recall that when I was at the Department of Justice, President Bush the Elder made a recess appointment with just a couple of weeks left in his presidency: following the 1992 elections, the new Congress convened on January 7, 1993, and promptly recessed until January 20, 1993 (Inauguration Day). On January 8, President Bush, purportedly by virtue of his recess appointment power, appointed one Thomas Ludlow Ashley to be a Governor of the United States Postal Service. President Bush was having a titanic struggle with the Postal Service at the time and wanted to get his own people in charge as much as possible.

The validity of a recess appointment during a 12-day recess became another difficult issue in a case filled with hopelessly difficult issues. Fortunately for us, and perhaps for the Republic as well, the issue mooted out and melted away quietly once the Clinton Adminsitration came in. So we still don't know the answer.

But here's my small contribution to the debate: notice that the Constitution provides for the President to have the recess appointment power during "the" recess of the Senate. Could the definite article "the" suggest that the recess appointment power is not meant to apply during something that would merely be "a" recess? After all, once you allow recess appointments during "a" recess of, say, a month, it's tough to avoid noticing that the Senate is frequently in recess for a few days, over the weekend, overnight, or even over lunch. What line distinguishes these recesses from recesses during which the recess appointment power is active? If the answer is "hmmm, hard to say," then perhaps the definite article "the" in the recess appointment clause indicates that the recess appointment power exists only during an intersession recess, not during an intrasession recess of any length.

That's not how Presidents have treated the power, but it's a potential solution to what is otherwise a constitutional conundrum.

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