Wednesday, January 2, 2008

Pro Forma Redux

Once again the Senate is engaging in pro forma sessions every three days, in order to thwart President Bush's ability to make recess appointments. Apparently Senator Jim Webb of Virginia, who's now presided over such sessions several times, has the thing down to 10 seconds.

As I mentioned before, there's a reasonable argument that the President's recess appointment power doesn't apply during intrasession recesses anyway: the Constitution says that the President can make a recess appointment during "the recess" of the Senate, not during "a recess" of the Senate. The definite article "the" suggests that the Framers were thinking about the recess that occurs between Senate sessions, not just any old recess, such as the one that occurs every day when the Senate goes to lunch. Indeed, that was the understanding of the Recess Appointment Clause explicitly announced by Attorney General Philander Knox in 1901.

But this point inevitably makes one think about the upcoming intersession recess. At some point, the Senate has to end its current session and start its new session. That's currently scheduled to occur on January 22. Even assuming the Senate holds one last pro forma meeting as part of its current session on that very day, there will have to be at least a moment when the Senate is between the two sessions.

Not enough time for mischief, you say? You underestimate the mischievous minds of Presidents. On December 7, 1903, when Teddy Roosevelt was President (and when the recess appointment power was understood to apply only during intercession recesses), the Senate was in a special session called by the President on November 9. At some point on December 7, the Presiding officer banged the gavel to end the special session and then immediately banged it again to start the new, regular session. And President Roosevelt later announced that in the instant between the two gavel bangs, when the Senate was in a genuine, bona fide, but very brief intercession recess, he had made 160 recess appointments!

If President Teddy Roosevelt was ready to play games like that, just imagine what President Bush would do.

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