By Scott Cumbie
The discussions this week over the constitutionality of the presidential “recess” appointments have revolved around whether the Senate was in recess or not. In actuality, the “recess” issue is irrelevant to the question of constitutionality. For the purposes of this discussion, let us take the President’s position and assume that the Senate was in recess. Then, let us look at the text of the Constitution to determine if the President’s actions were lawful.
Article 2 Section 2 Paragraph 2 says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, … which shall be established by Law.” Since the departments in question were established by law, the Constitution very clearly states that the President nominates and the Senate approves. The arguments revolve around the next paragraph.
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
There are 2 very important items stated in this paragraph:
First, when can a President fill a vacancy? Answer: when the vacancy occurs during the recess of the Senate. The vacancies for all four of the positions that were filled by the President existedbefore the recess. None of these vacancies happened or occurred during the recess. A clear reading of the text tells us that these appointments were unlawful.
Secondly, any recess appointment expires at the end of the next session of the Senate. Once the Senate assembles after a recess appointment is made, if the Senate takes no action then the appointment expires immediately upon the next recess. In the current case, the Senate could have opened after this latest recess and immediately gone into recess again which would have caused these four appointments to expire. The Senate would not have had to even discuss the recess appointments.
Why would the framers of the Constitution allow a President to make recess appointments and why only if the vacancy occurs during a recess of the Senate? Why, also, would they want these recess appointments to expire in the manner stated above?
At the time the Constitution was written, the framers were only expecting Congress to be in the capital for part of the year. In fact, they were more concerned that Congress would not meet often enough, so in Article 1, Section 4 they state that “The Congress shall assemble at least once in every Year.” The framers were expecting that there would be long periods of time when the Congress would not be in the capital and would not be available to approve a nomination for a vacancy. These recess appointment were intended to allow the President to be able to conduct the business of the government until the Senate could return to the capital and take action on the nomination / appointment.
If a vacancy occurred while Congress was in session, and the President did not nominate and the Senate did not approve the nomination before a recess, then the President was not given the power to make a recess appointment. By the Senate not acting on a nomination before the recess, the Senate effectively states its will by not giving consent. In this case, the President cannot act until the Senate reconvenes.
This is exactly the same reason that the Constitution states that a recess appointment will expire at the end of the next session. If the Senate comes out of recess and decides not to provide consent on a recess appointment before their next recess, then they have stated their will by not giving consent. The Constitution does not allow a President to act independently of Congress or to circumvent the will of Congress.
Joseph Story, who was appointed to the Supreme Court 200 years ago by President James Madison, wrote a series of commentaries on the Constitution. In discussing recess appointments, Story states that “The propriety of this grant is so obvious, that it can require no elucidation. There was but one of two courses to be adopted; either, that the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have had an opportunity to act on the subject. The former course would have been at once burthensome to the senate, and expensive to the public. The latter combines convenience, promptitude of action, and general security.”
In other words, the reason for recess appointments was obvious and required no explanation. This grant allows the President “temporary appointments” in order to conduct the business of the government until “the senate should have had an opportunity to act.”
Story continues by stating that “The appointments so made, by the very language of the constitution, expire at the next session of the senate; and the commissions given by him have the same duration.” Again, if the Senate does not act on the appointment, then the appointment expires at the next recess. Clearly, if the Senate does not give consent, the President does not have Power to appoint.
Concerning the requirement that a vacancy occurs during a recess, Story states, “The language of the clause is, that the president shall have power to fill up vacancies, that may happen during the recess of the senate… By “vacancies” they understood to be meant vacancies occurring from death, resignation, promotion, or removal. The word ‘happen’ had relation to some casualty, not provided for by law. If the senate are in session, when offices are created by law, which have not as yet been filled, and nominations are not then made to them by the president, he cannot appoint to such offices during the recess of the senate, because the vacancy does not happen during the recess of the senate.”
This last sentence discusses the exact situation we have with the President’s recent appointment of Richard Cordray to the Consumer Financial Protection Bureau (CFPB). The other 3 appointments were for vacancies in existing offices that occurred before this latest recess (and not during this recess).
Based on the clear text of the Constitution and the intent of the framers, the four recent recess appointments by the President are clearly unlawful. When the President stated that, “I’ve got an obligation to act on behalf of the American people, and I’m not going to stand by while a minority in the Senate puts party ideology ahead of the people that we were elected to serve,” it is clear that his intent is to circumvent the Constitutional requirement that he obtain the advice and consent of the Senate. This is acting outside the power granted to him in the Constitution.
republished with permission of the author