Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
November 1, 2014

When Is ‘Recess’ Not Vacation and When Does ‘Pro Forma’ Mean Work?

Of course, the fate of the Voting Rights Act is vitally important to the lawmakers who survive or sweat because of racial bloc politics. And the future of the Defense of Marriage Act is of keen interest to the lawmakers who see their main causes in the trenches of the culture wars.

Their suspense is about to come to an end, with rulings about the constitutionality of both laws due as soon as Tuesday morning and for sure within a week.

However, for every member of Congress, the year’s biggest Supreme Court announcement came Monday. The justices agreed to consider the “recess” argument between the Senate and President Barack Obama. It’s an admittedly arcane dispute over the president’s ability to make appointments to Cabinet offices, regulatory agencies and the courts while Congress is not in session. But it could be the most consequential balance-of-powers case to come before the court since the line-item veto was struck down 15 years ago.

The outcome — oral arguments will happen this fall and a decision would be expected within a year — could redefine legislative and executive branch prerogatives for decades.

In the short term, it will be especially important as Obama works to shape his own administration, the autonomous regulatory agencies and the federal courts during the final two lame-duck years of his second term. Regardless of whether they win back control of the Senate, Republicans are likely to be as determined as ever to limit the president’s reach after the midterm election.

The case looks to require the judicial branch to insert itself into just the sort of highly politicized disputes between the executive and legislative branches that so many judges say they want to avoid.

And, at its core, the central question looks to be little more than a question of 18th-century semantics — about the meaning of Article II, Section 2’s presidential power “to fill up all vacancies,” which normally require Senate confirmation, if they “may happen during the recess of the Senate.”

Is that whenever senators look for all the world like they’re taking a break from their business during the year? Or is it only when there’s a formalized adjournment under way between the end of one session and the start of the next?

Deciding the case one way would preserve the traditional avenue Obama and his predecessors have had around their most nettlesome confirmation fights. A decision going the opposite way would theoretically eliminate the recess appointment power entirely.

Three regional federal appeals courts have upheld the president’s customary recess appointment powers, the last time eight years ago. But two different appeals courts have rejected the practice outright this year.

The ruling the Supreme Court has now agreed to review came in January from a D.C. Circuit Court of Appeals panel of three Republican presidential appointees. The other case was decided 2-1 in May by the 3rd Circuit Court of Appeals in Philadelphia; the two judges in the majority were GOP nominees, while the dissenter was an Obama pick.

Both involved the three recess appointments Obama made in January 2012 to the National Labor Relations Board, Washington’s main forum for settling disputes between workers and management.

The partisan sheen to both rulings has inevitably given rise to talk that two centuries of precedent is being imperiled by a new generation of activist conservative judges out to reverse the activist liberalism of the past.

Those suspicions would only become more prominent if the Supreme Court rules against Obama just as the 2014 campaign is moving into high gear. If the court decides he violated the Constitution when he filled three NLRB vacancies — and when he installed Richard Cordray as head of the new Consumer Financial Protection Bureau — the ruling could also invalidate each of the hundreds of generally favorable-to-the-left decisions rendered since then by both agencies.

The plaintiff in the case is a small Pepsi bottling company, Noel Canning, which argues that an NLRB ruling against it is invalid because three commissioners were improperly seated in their posts. In theory, a ruling in favor of the bottling business could call into question the legitimacy of any decision by any official who ever got on the job with a recess appointment in the middle of the year — more than 500 since George Washington’s time, including three Cabinet secretaries, a Federal Reserve chairman, a CIA chief, 15 federal judges and a host of regulatory board members.

Senate Republicans had made quite clear they weren’t going to advance the NLRB or CFPB nominations — their way of limiting both agencies’ powers. The president announced the moves when almost all senators were back in their states for a long break over the holidays. But the GOP leadership, in an explicit bid to thwart such appointments, insisted that a “pro forma” meeting be convened every third weekday as a way to underscore that the winter break was not a recess-appointment kind of recess. The move emulated what Senate Democrats had insisted on when George W. Bush was president and felt stymied by the slow pace of confirmations.

As part of its review, the Supreme Court agreed to consider the legitimacy of such pro forma sessions. Solicitor General Donald Verrilli, in his brief asking the justices to rule on that question, argued that those meetings shouldn’t be allowed to mask reality when the Senate is shut down for all intents and purposes. When Obama acted, Verrilli noted, the unanimous consent agreement setting the Senate schedule for the first three weeks of 2012 mandated “pro forma sessions only, with no business conducted,” which in the president’s view meant the Senate said it was not available for its advice and consent role.

Minority Leader Mitch McConnell and 44 other Senate Republicans filed a brief asking the court to rule that it’s up to the Senate to decide when it’s in and when it’s not. “The chamber decided not to ‘recess,’ but instead held regular meetings, as its records attest,” they wrote. “The president’s claimed authority to name principal federal officers without the Senate’s consent while the chamber has declared itself in session has no basis in the Constitution.”

The fact that both branches of government think this is a semantic fight worth having is evidence enough of the high stakes involved.

  • gma14

    You say he has ONLY made 32 ILLEGAL appointments so far?? Like this is great?? If they cannot pass the lawful way-get rid of them. They are terrorist rubberstamps for Obama–that is why they are there!! Of course they will FIX the law so he gets his way in ruining this country! They have their heads buried in a crack of some kind! HE shouldn’t be there-according to what we hear he isn’t even born yet since he has NO birth certificate. One question–how did they find his ancestors without a birth certificate?????????

  • thegreenchick

    If left to the current GOP, they would rather our government limp along and do nothing until they regain power, rather than maintain a strong America under someone else’s leadership. Yet they call themselves Americans with values.

    • gma14

      A strong America would be one who has jobs for the people who want work, so they can support the leaches who don’t want to work. Otherwise, it doesn’t matter who is in charge, everything goes down the tube. As is happening with the Demoncraps in charge! Too many supposedly Republicans have their noses up the same dark hole the Demoncraps have theirs up–so far they can’t see what is happening to our country!

      • Inattentive Vigilant

        So what you’re saying is congres should keep trying to repeal obamacare and overturn roe v wade?

        Sorry, have yet to see a single piece of legislation from the republican controlled house that has anything to do with jobs.

      • thegreenchick

        The general tenor of this response indicates a fear of losing material STUFF and STATUS. It shows weight to those things, with little import to valuing a fellow human. Apathy and venom toward our fellow human beings hurts us all. Thankfully, such thinking is in the minority. Most Americans believe that a “strong America” is one that functions as a community. A strong America seeks, through individual actions and public policy, to rectify the suffering of the less fortunate. A strong America does not stone the welfare recipient because their need is seen as taking away but rather work to find a way to assist as a chance to embrace compassion. A strong America does not allow the selfish and greedy to dictate policy.

        • henderson28570

          Yet you keep carrying the Demoncrat flag?

  • Tab L. Uno, LCSW, MPA

    It’s essential for the operations of government that every day work of the Executive Branch be effectively overseen by directors and managers appointed by the President and approved by the U.S. Senate. Nevertheless when the U.S. Senate isn’t in session, important everyday work can’t just stop and be thwarted by the absence of the U.S. Senate in session and which sets policy from which the Executive operates. The U.S. Supreme Court needs to define what “a material and substantial recess” means under the U.S. Constitution and thus when the U.S. Senate is legitimately unavailable for its review of Presidential appointees so that the President can continue with his responsibilities in operating and managing the daily work of government in the public interest by making interim appointments and determine for how long (sufficiently long enough so that the expectation of stable management doesn’t become so brief as to disrupt the orderly flow of executive functions).

    • gma14

      .A lot of blather to say you think it is ok for the pseudo president to carry on whether it is illegal or not–since he is illegal what he does is illegal anyway so it doesn’t matter. Don’t worry, they will do anything for your golden boy to tear down this country. I hope you suffer a lot when that happens. This is what happens when people vote for illegal aliens with NO experience at anything except golf and pink houses of ill repute in Chicago!

      • sphenoid

        We shouldn’t wish ill-will upon anybody. Please engage others with respect.

  • sphenoid

    “Republicans had declined to advance any of the nominations as a way to limit both agencies’ powers.” This whole situation, including the loss of work time and money on other projects, could have been avoided if Congress decided to work with the executive branch instead of withdrawing and avoiding. These types of inactions as actions stall the working power of momentum in policy making, an obstruction in the machinery of society. Lay people should criticize activities like this so that we can slowly grow towards a culture of policy making that is engaging, neutral, and rational, rather than obstructionist, ideological, and stubborn.

  • thegreenchick

    From the mooning henderson28570 to gma14′s “no birth certificate”, the site is attracting an off-the-charts weirdo fringe. Can we filter the comments for intelligent responses? Otherwise, it becomes a waste of time.

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