Obama's Recess Appointment Sparks Showdown

[daredelvis]

Don't be silly. The lobbyists live with the representatives in Washington. Sometimes sharing a bed.

Too true (and not a metaphor).

Daredelvis

 

[leftysergeant]

There were reports that McCain was doing a lobbyist before the 2008 election.

(Now, if I had a delete button for my minds eye so that I need not think of that image again...)

 

[jj]

Did the Senate have a quorum? I mean real, by heck, senators sitting in their comfy chairs?

 

[WildCat]

I don't why the legislature gets "recess" anyway. How many citizens have jobs that just stop for a while? Surely governing (allegedly governing) the country is important enough to happen year round?

A carryover from the old days, when it took weeks or even months for some Congresscritters to traverse from their home states to DC and back.

 

[JoeTheJuggler]

Did the Senate have a quorum? I mean real, by heck, senators sitting in their comfy chairs?

No, but then again blocking cloture isn't usually to engage in actual debate either.

These are just machinations with the rules. Mind you I don't condemn such machinations. The rules are arbitrary (and the rules are even involved in changing the rules), but they're the rules.

Similarly, I don't have much problem with things like a QB spiking the football to stop the clock in a "two minute drill" offense in the NFL. It's no more an incomplete forward pass than some guy turning on the lights comprises Congress being "in session", but that's how the rules are set up.

But I also have no problem with Obama doing his best to challenge that particular rule. That's also part of the "game".

I'd certainly rather petty quibbles over the rules to something like a military coup for control of the government!

 

[eeyore1954]

I suspect the problem is when the constitution was written no one invisioned there would be that many positions that the senate would need to confirm. I am surprised that now the Senate does not have to confim the person who is in charge of the cleaning crew. I am equally sure that if a confimation was required the opposing party would find a reason to block confirmation. At least until the toilets got too dirty.

 

[WildCat]

Similarly, I don't have much problem with things like a QB spiking the football to stop the clock in a "two minute drill" offense in the NFL. It's no more an incomplete forward pass than some guy turning on the lights comprises Congress being "in session", but that's how the rules are set up.

I don't think it is an incomplete forward pass, the rule is there specifically to allow a team to stop the clock at the expense of a down. You get one step back, then you have to spike the ball.

The Bears backup QB screwed that up during a game this season, idiot took 2 steps back then spiked it. Was penalized for intentional grounding, and the subesquent 10 second runoff meant the game was over. Pretty much the Bears season captured in a single play.

 

[WildCat]

I suspect the problem is when the constitution was written no one invisioned there would be that many positions that the senate would need to confirm. I am surprised that now the Senate does not have to confim the person who is in charge of the cleaning crew. I am equally sure that if a confimation was required the opposing party would find a reason to block confirmation. At least until the toilets got too dirty.

That's the big question, do these positions even require Senate approval? I don't think a court has ever ruled on when an appointee requires Senate approval and when they don't.

 

[JoeTheJuggler]

I don't think it is an incomplete forward pass, the rule is there specifically to allow a team to stop the clock at the expense of a down. You get one step back, then you have to spike the ball.

I'm pretty sure the rule is derived from the incomplete forward pass, though. [FWIW, Wikipedia says it's technically an incomplete forward pass--though it only seems to refer to college football.] In political terms, it would be a "pro-forma" incomplete forward pass. If you want to keep the clock rolling, the QB does the kneel down thing (and the line of scrimmage moves back to where he knelt).


Dang it--now this is going to bug me enough that I've got to waste time poring through official NFL rules. . . .

ETA: Yep--it's an incomplete pass under NFL rules. It's just a special exception to the penalty of intentional grounding. See page 5 of this pdf: http://static.nfl.com/static/conten...pdfs/11_Rule8_ForwardPass_BackPass_Fumble.pdf The incident you spoke of is the next rule which says specifically if you delay before spiking it for any strategic purpose, then you lose this special exception and it's intentional grounding.

 

[Trakar]

That's the big question, do these positions even require Senate approval? I don't think a court has ever ruled on when an appointee requires Senate approval and when they don't.

"Advise" is probably avoidable, but "and consent" is pretty hard to word wrangle around.

 

[Puppycow]

Are you sure the Democrats started it, or did you just mean they are also guilty of it.

That's what I heard in the news.


Jamie Dupree Washington Insider
More on Recess Appointments

On the basic issue of making recess appointments - there is nothing wrong with that. Presidents have made plenty of them. They don't always get a rousing political reception from the other party, but they happen.

The difference is that in recent years, the opposition party in the Senate has moved to block the White House from making any recess appointments.

Starting back in 2007, Senate Democratic Leader Harry Reid kept the Senate in session - even when 99% of all lawmakers were out of town - so that the Congress never technically went on an extended recess.

To keep the Senate technically in session, Senators would hold a "pro forma" session every couple of days - usually Monday and Thursday or Tuesday and Friday.

Even though no legislative business was scheduled, this action was considered to have kept the Senate in session, and therefore no recess appointments could be made.

That's what Democrats did in 2007 to block any new Bush recess appointments.

 

[Trakar]

That's what I heard in the news.


Jamie Dupree Washington Insider
More on Recess Appointments

I don't see anything there that compellingly supports "democrats started it," so I'm guessing you posted this to support "democrats do it too?"

 

[hgc]

That's the big question, do these positions even require Senate approval? I don't think a court has ever ruled on when an appointee requires Senate approval and when they don't.

It's a matter of legislative law, not judicial. The Dodd-Frank law determined that this position has a Senate confirm requirement (by not saying otherwise).

From US Constitution, Article II, Section 2

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

 

[Bri]

I don't see anything there that compellingly supports "democrats started it," so I'm guessing you posted this to support "democrats do it too?"

I've seen several sources indicating that, at least in recent history, Harry Reid was the first to use pro forma sessions to prevent Bush from making recess appointments during the last two years of the Bush administration. In post #20 of this thread, I quoted an article from the Washington Post that implied that Reid was the first to try to block recess appointments using pro forma sessions. I can try to find some other sources if you like.

ETA: A document on the Senate's web site written December 12, 2011 entitled "Recess Appointments: Frequently Asked Questions" by Henry B. Hogue, Analyst in American National Government includes a history of attempts by Congress to block recess appointments:

Can Congress Prevent Recess Appointments?

From the 110th Congress onward, new scheduling practices have arisen that appear intended to prevent the President from making recess appointments. One set of practices was implemented by the Senate alone; no unusual action or inaction by the House was necessary. A second, related set of practices, which developed in the 112th Congress, arose from the lack of a concurrent resolution of adjournment, which can result from a lack of consent by either the House or the Senate.

...

The logic of the argument laid out in the Justice Department brief appears to underlie the congressional practices that were first implemented during the 110th Congress. From November 2007 through the end of the George W. Bush presidency, the Senate structured its recesses in a way that was intended, at least initially, to prevent the President from making recess appointments. The approach involved the use of pro forma sessions, which are short meetings of the Senate or the House held for the purpose of avoiding a recess of more than three days and therefore the necessity of obtaining the consent of the other House. Normally, it is understood that during a pro forma session no business will be conducted.

On November 16, 2007, the Senate Majority Leader announced that the Senate would “be coming in for pro forma sessions during the Thanksgiving holiday to prevent recess appointments.” The Senate recessed later that day and pro forma meetings were convened on November 20, 23, 27, and 29, with no business conducted. The Senate next conducted business after reconvening on December 3, 2007. During the remainder of 2007 and 2008, similar procedures were followed during most other periods that would otherwise have been Senate recesses of a week or longer in duration.

The Senate pro forma session practice appears to have achieved its stated intent: President Bush made no recess appointments between the initial pro forma sessions in November 2007 and the end of his presidency.
​

Dude, check the names in that article. There was someone with authority there to call the chamber to order. That chinless drongo from Tennessee does not have that authority.

I believe that the Senate has to vote in order for there to be an official recess. If there is a vote and the majority vote against the recess, Congress has to stay in session. If the majority vote for a recess, Congress is officially on recess and there can be no pro forma sessions. But if there's no vote at all, the pro forma sessions are the default because the Senate isn't officially on recess. The question I had was why wouldn't the Democrats, who control the Senate, just call for a vote for an official recess?

One explanation I've heard is that the House has to agree to an official recess of the Senate and vice-versa, so the House Republicans would have blocked an official recess.

There's also another explanation. According to this article, when it was time for Congress to go on recess in May of 2011, the Republicans forced a pro forma session by threatening to vote against an official recess until a budget was passed by the Senate. Therefore, if a vote was held, it would make the Democrats look bad if they voted for the recess without passing a budget. So instead, Harry Reid didn't call a vote for recess and opted for the pro forma sessions (which prevented Obama from making recess appointments).

-Bri

 

[JoeTheJuggler]

I believe that the Senate has to vote in order for there to be an official recess. If there is a vote and the majority vote against the recess, Congress has to stay in session. If the majority vote for a recess, Congress is officially on recess and there can be no pro forma sessions. But if there's no vote at all, the pro forma sessions are the default because the Senate isn't officially on recess.

But, even if there is no vote to end the session, to avoid recess appointments, there still has to be regular pro-forma sessions (what I've been referring to as someone coming in and turning on the lights for a few minutes every few days). I think Lefty's point is that no one with authority to do that has done that this time around.

I don't know the details of the rules, so I have no idea if there is any merit to what Lefty is saying.

But that's the thing about playing with rules like this--again, just like spiking the ball as an exception to the rule about intentional grounding--the devil is in the details. As pointed out, if you delay (as in taking 2 steps) after the snap before spiking the ball, you've lost your special exception to the intentional grounding rule. So if you want to execute a pro-forma incomplete forward pass to stop the clock, you've got to adhere strictly to the rules.

 

[JoeTheJuggler]

BTW, on recess appointments: the Senate still has the authority to reject the appointee when they come back, don't they? (I believe that's what happened with the first recess appointment ever--the mentally unstable person Washington appointed.)

It's really about shifting the burden of what they're voting on from not letting someone take a job to firing them from that job after they've started. [ETA: Or perhaps more accurately, it's about changing the default status. If they do nothing, consent is assumed.]

 

[Bri]

But, even if there is no vote to end the session, to avoid recess appointments, there still has to be regular pro-forma sessions (what I've been referring to as someone coming in and turning on the lights for a few minutes every few days). I think Lefty's point is that no one with authority to do that has done that this time around.

Up until now, the precedence has been that it has to be done at least every 3 days. I believe the precedence has also been that it doesn't have to be someone with specific authority to do so. In the past, it has been done with a few Senators who happened to live near Washington D.C. coming in twice a week.

I don't know the details of the rules, so I have no idea if there is any merit to what Lefty is saying.

I don't either, but I suspect there is no rule that a specific person with special authority has to do it. When this was done during the Bush presidency, did Harry Reid himself open/close every pro forma session every few days? I doubt it, given that he doesn't live anywhere near Washington D.C.

But that's the thing about playing with rules like this--again, just like spiking the ball as an exception to the rule about intentional grounding--the devil is in the details. As pointed out, if you delay (as in taking 2 steps) after the snap before spiking the ball, you've lost your special exception to the intentional grounding rule. So if you want to execute a pro-forma incomplete forward pass to stop the clock, you've got to adhere strictly to the rules.

Here's another wrinkle I just read here:

David Arkush, director of Public Citizen’s Congress Watch division, wrote Obama in June, arguing that the president could make recess appointments, because he has adjournment power. The Constitution says so, in Section 3 of Article 2:

[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.​

In other words, Arkush said, if the Democrat-controlled Senate wants to adjourn and the Republican-controlled House won’t permit it, the President can adjourn both houses of Congress.​

What do you make of that, Joe?

-Bri

 

[Trakar]

I've seen several sources indicating that, at least in recent history, Harry Reid was the first to use pro forma sessions to prevent Bush from making recess appointments during the last two years of the Bush administration...

I am aware of the case some are trying to present, but I have yet to see any substantive support for these assertions. Rather than repetition of this faux media/political outrage rhetoric, I would prefer something more along the lines of an unambiguous statement from a respected political historian/constitutional lawyer. Given the oft purported "historic" nature of the Obama "power grab," it seems reasonable that some such profession would be commenting on this, either confirming or denying the state of media fact on the issue.

It may well be unprecedented, but given the breathless hyperbole that seems rampant in entertainment-news and hyper partisan politics it is rather difficult to wade through the pages of lurid headline trash that clog virtually any reasonable search string seeking actual and verifiable historic information.

Given that recess appointments are a topic of some consideration and contention since the founding of our nation, however, I would be a bit surprised if such attempts to block or thwart their use were a totally new convention. And if they are a new phenomena I feel they speak more to the vapid lockstep partisanship that seems largely the result of one party's swing to the "no prisoners, no negotiations, no exceptions" stance than anything else. Anything you can find that would compellingly indicate that this is unambiguously modern, or not, would be appreciated.

While not the same issue, my personal favorite US President, Theodore Roosevelt, back in 1903, pushed through appointments of 160 officers (mostly military) in the 30-second "recess" between the closing of the 1st session of the 58th Congress and the opening of the 2nd session of the 58th session of Congress. There is no constitutional time limit on how long the Congress must be in recess before appointments can be made, merely conventions and practices which have been rather fluid in the history of our government. Inthe end it seems more like a rhetorical kerfuffle than any actual event of note.

 

[Bri]

BTW, on recess appointments: the Senate still has the authority to reject the appointee when they come back, don't they? (I believe that's what happened with the first recess appointment ever--the mentally unstable person Washington appointed.)

Not according to that document I cited earlier in the thread. Apparently, a recess appointment expires at the end of the Senate’s next session or when an individual (either the recess appointee or someone else) is nominated, confirmed, and permanently appointed to the position, whichever occurs first.

-Bri

 

[JoeTheJuggler]

What do you make of that, Joe?

Sounds reasonable (using the president's adjournment power), but I would liken it to the "nuclear" option wrt the filibuster. Once it's invoked (and if allowed to stand) it would effectively do away with pro-forma sessions.

I would also argue that it's more obviously contrary to the spirit of these laws and rules. It's hard to buy the president invoking his authority to force an adjournment and then making recess appointments (ostensibly because the appointments must be made in a timely manner and can't wait for Congress to reconvene so the Senate may provide its consent). It's like trying to argue contrary positions simultaneously.

IMO, I'd like to see a rule made that goes to the heart of the matter: recess appointments may be made if and when the Senate has failed to vote on appointments made during session. I think it would serve the public if Senators were made to say "no" to an appointee they disapprove of rather than blocking appointments by inaction. As with the filibuster and these other rules, the policy I suggest would cut both ways (as far as party politics goes).