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August 1, 2015

Why the Senate Gaveled In Today

(C-SPAN Screenshot)

(Screenshot)

The Senate came back into session for a few seconds at noon Monday, but why?

The House and Senate had agreed to adjourn for the August recess, leaving no need for the once-every-three-day pro forma sessions that had become the norm in recent years. But Maryland Democrat Benjamin L. Cardin’s perfunctory Monday appearance to gavel the Senate into session had a benefit that the White House will no doubt appreciate. Since this year’s August break runs until Sept. 9, a span of longer than a month, a particularly obscure Senate rule was due to take effect.

A provision of Senate Rule XXXI requires presidential nominations to be returned to the president if the Senate doesn’t act before a monthlong break:

Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President.

In other words, without convening Monday’s pro forma, nominations like those of Rep. Melvin Watt, D-N.C., to head the Federal Housing Finance Agency would have to be resubmitted to the Senate and start again at the beginning of the process, presumably including reconsideration by the Banking, Housing and Urban Affairs Committee.

That’s the process that played out back in 2010, when Republicans declined to waive the 30-day rule for a dozen Obama administration nominees, including Donald M. Berwick to be the administrator of the Centers for Medicare and Medicaid Services and Peter A. Diamond to a seat on the Federal Reserve.

Diamond, a Nobel prize-winning economist, later wrote a scathing opinion piece in The New York Times when he announced he would withdraw from further consideration for the Federal Reserve post.

While the Senate confirmed a slew of nominees before departing for this current recess, several pages of names remain pending on the floor calendar, with others still waiting for committee consideration.

The reason the pro forma sessions used to happen once every three days was a bid to preclude Presidents Obama and George W. Bush from making recess appointments, since the Senate claimed it was still in session. Three federal appeals courts have since ruled in favor of a more narrow definition of the appointment power with respect to recess appointments to the National Labor Relations Board. The Supreme Court is set to hear that case next term.

The Senate has now left for the remainder of the August recess, coming back for legislative business on Sept. 9, one week after Labor Day.

Comments (18)

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