By Harold Pease, PH. D
The U.S. Senate did not consider itself in recess on January 4, 2012, when President Barack Obama filled four Senate vacancies. So argued Senate Minority Leader Mitch McConnell before the United States Supreme Court, who has been adjudicating the possible constitutional violation of the President’s actions the past week. Article II, Section 2, Clause 3 clearly reads: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate….”
The four vacancies were three seats on the National Labor Relations Board and one to head the new Consumer Financial Protection Bureau. The one that was most offensive was the latter coming right after the Senate blocked action on that nomination but the President in what appeared to be “in your face” appointed him, Richard Cordray, anyway.
The rational for the constitutional clause was simple and housed in Article I, Section 4, Clause 2. Congress was initially required to “assemble at least once in every Year, and such Meetings shall be on the first Monday in December, unless they shall by Law appoint a different Day.” The likely reason for December was that for most, the winter month was a relaxed time especially for planters and merchants who might be able to serve. It also tended to limit Congress’s actual meeting time to about three weeks because everyone wanted to be home for Christmas. Then too, those who served for a few weeks could return home the rest of the year to earn their own living. As such, an important appointment might not be filled for months until Congress could reassemble, hence, the wordage allowing the President to fill the vacancy temporarily, which was to expire “at the End of their next Session.”
The national government was never to be the big government. All power not listed in the Constitution was to be left to the states or to the people as noted in Amendment 10. Having Congress meet year-round would have been a foreign idea to the Founders. How could they “really” represent the people if they lived removed from the people in a capital, hundreds, often thousands, of miles away most of the year? Amendment 20 changed this part of the Constitution when the Democratic Party assumed control in 1933 of both the executive and legislative branches of government and wanted a full-time legislature to implement Franklin D. Roosevelt’s many changes; all of which aimed at making all or most power flow to Washington D.C. and away from the city, county and state where it was constitutionally placed. The era of big government mushroomed.
Alexander Hamilton saw the disputed clause in the Constitution for what it was, to provide an alternative method of appointment that would allow “without delay” the filling of vacancies during periods of Senate absence—nothing more—so that the Senate need not be in session continually (The Federalist Papers, ed. Clinton Rossiter, New York: New American Library, 1961, pp. 409-410). Certainly, the rational for a shared power with the President diminished when Congress started meeting year round and is today in recess only a few days.
Today the minority party fears going into recess because the opposing dominant party will make “objectionable” appointments while they are away. Senator Harry Reid devised gimmicks to keep the Senate in session continually to squelch George W. Bush’s recess appointments. The Washington Post reported on January 5, 2012, how this was done. “Starting in Nov. 2007 through the end of Bush’s presidency, he ordered the Senate to meet in pro-forma sessions, or short meetings, over the holidays and traditional summer and spring recesses. No official business was conducted during the brief sessions and the move prevented Bush from making any recess appointments through the end of his presidency.” Now the Republicans do the same thing to the Democrats and they do not like it either. In an attempt to break Republican opposition to his appointments, Obama appointed the four mentioned above anyway and earned the retribution of even the left-leaning Washington Post who said: “President Obama pulled a fast one.”
Still, the Senate maintains that it was not in recess when Obama made his appointments. That is true in the same measure as when Reid said that the Senate was never in recess during Bush II. Such a time, January 4, 2012, was selected by Barack Obama to make the controversial appointments and argue that the Senate was not “really” in session. Technically he was correct and the case may be made that they only pretended to be. Still, this is not the call of the Executive Branch. When the Senate says that it is in session it is—even if it has decided previously not to conduct any business, as it had between December 27, 2011 and January 23, 2012.
Whether ethical or not the fact remains that the Senate, in implementing pro forma gatherings, is showing that it intends to be considered as being in session. The Constitution allows the legislative body to define when it begins and ends and it has done so. To allow the President to do so instead would, in effect, give it a measure of supervision or authority over the legislative body and thus damage the concept of separation of powers so carefully crafted by the Founders.
So, if the Supreme Court supports the Constitution as created, it will announce next June that the President has over extended his authority. If not, it will further weaken the separation of powers philosophy so critical to freedom and the Constitution.