The Constitutional Significance of the Thanksgiving Weekend (or, Constitutional Hardball and Recess Appointments)

Marty Lederman

Senate Majority Leader Harry Reid and Virginia Senator Jim Webb think they have found a solution to the problem of unconstitutional recess appointments: every three or so business days during the Thanksgiving break, they will convene "pro forma" sessions of the Senate, lasting only a minute or two. (The schedule was announced by Senator Webb on Monday.) They think this will prevent the President from appointing officers during this intra-session adjournment.

I'm not sure why they're so confident. The Recess Appointments Clause (RAC) provides that 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." Art. II, sec. 2, cl. 3. I have argued -- see my posts here and here, and briefs I filed on behalf of Senator Kennedy (with Larry Tribe, Tom Goldstein and Amy Howe) here and here -- that this gives the President the power to make appointments without the Senate's participation only between Sessions of the Senate (of which there are generally one per year, or two every election cycle).

Since 1993, however, the Executive branch's view has been that the term "the Recess" in the RAC refers to any suspension or remission of Senate business, no matter how short. (The history of the Executive branch's views is discussed in the briefs linked above.) That means that if the Senate breaks for ten days, or for three, or overnight, or for a lunch break, the President can unilaterally make appointments to federal office, including to the federal judiciary, and those appointees can stay in their positions until January 2009, when the Senate's next session begins.

On this view, there would be nothing to stop President Bush from appointing, say, a new Surgeon General -- someone the Senate would never confirm -- during the short three- or four-day breaks that Senators Reid and Webb have scheduled.

Senators Reid and Webb are no doubt relying on certain prior representations of the Department of Justice. In briefs to the courts, DOJ has occasionally hinted that, in its view, adjournments of three days or less might not be "the Recess" to which the RAC refers -- a sort of de minimis exception. But there's really nothing to be said for such a de minimis rule -- it makes no constitutional sense -- which is why DOJ has never really embraced it. (See note 10 of the Franklin brief, and pages 39-42 of the Stephens brief. DOJ no doubt occasionally floats the idea of a possible three-day exception just so it can try to distract courts and others from the absurd ramification of its actual legal argument, which is that the President may make recess appointments every weekend, indeed, every night.)

Moreover, President Bush and other recent Presidents have gotten in the habit of appointing officers very soon before the Senate reconvenes -- the most egregious example being Judge Pryor, who was appointed on Friday, February 20, 2004, with the Senate returning three days later, on Monday, February 23d.

What then, is to stop the President from making appointments at the outset of one of the Reid/Webb "mini-breaks," three days before the Senate's reconvening?

Only this: Precedent. No President has ever made a "recess" appointment during an [CLARIFICATION: intrasession] break of fewer than nine days. Technically, then, President Bush would be breaking new ground, taking the Executive's theory of recent years to its logical conclusion, which is that unless the Senate remains continuously in session, the President has the power to circumvent the legislative branch as to any and all federal appointments (of up to two years' duration). It would be an audacious move. But I wouldn't bet against it. After all, other than his reputation for constitutional fidelity -- purporting to respect "original intent" and to reject "living constitutuonalism" -- what has he got to lose?

[UPDATE: Thanks to a post from Brett in the comments section, it now occurs to me that something else might be going on here: Perhaps the Senate is not only splitting up its Thanksgiving break into small segments but also, and more importantly, designating each of those segments a separate "session" of the Senate, so that the First Session of the 110th Congress (of the Senate, anyway), ended on November 16th; the Second Session (or perhaps "Session 1A"?) began and ended on November 20th; the Third Session will occur on Friday morning; etc. That would not prevent the recess appointments during the interim periods, but it would mean that any such appointment would only last a few days (until the end of the next "session"). That would still leave open what happens if the President makes appointments right before the end of the last of these "mini-sessions," i.e., on December 2d. Such appointments would not expire until January 2009, unless the Senate makes a practice of convening these numerous "sessions" during every extended break from now until the end of the Bush Presidency -- which would not foreclose the President's hardball, but which would make it somewhat futile.

Is this what's going on? The Congressional Record is still recording this as the "First Session" of the 110th Congress, but who knows?: Perhaps that's wrong.

I'd be grateful for any insight into how the Senate rules and practices are at work here.]

[FURTHER UPDATE: Some commenters argue that because the RAC applies only to those vacancies "that may happen during the Recess of the Senate," it should be entirely inapposite to vacancies that came about before the recess or adjournment began, regardless of what the right meaning of "recess" might be. This argument is discussed in footnote 11 of our Stephens amicus brief, and it is the principal basis of Judge Barkett's thoughtful dissent from the court of appeals' decision in Stephens. I think it's right. Nevertheless, the Executive branch practice on that question is not at all novel. Since at least 1823, the Executive branch has taken the view that the word "happen" in the RAC must be construed to mean "exist," see 1 Op. Att'y Gen. 631, 632-33 -- although supporters of this argument "must, in candor, admit that their construction is not conformable to either the literal or the ordinary import of the words 'may happen,'" Case of Dist. Attorney of United States, 7 F. Cas. 731, 735 (E.D. Pa. 1868) (No. 3924).
Posted 10:21 PM by Marty Lederman [link]