Is Congress Open or Closed?
The world would be a lot easier if Congress had one of these:
When Congress is in “recess,” or what normal people call vacation, presidents have the constitutional authority to appoint high-level government officials without the “advice and consent” of the Senate (one of the major legislative checks on executive power). The framers foresaw that a president would need some leeway in appointing cabinet members and federal judges, though, because the Senate couldn’t be expected to be open for business all the time. Article II, section 9 states:
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.
These are known as recess appointments. Both Republicans and Democrats in the White House in recent years have been using this tactic with greater frequency to overcome increased obstructionism in the Senate. They’re often controversial, but hardly unconstitutional.
In the latest escalation of this inter-branch rivalry this summer, the House GOP took the extraordinary step of not actually going into recess after the debt-ceiling fight to prevent President Obama from filling hundreds of vacancies in the executive and judicial branches. These “pro forma” sessions don’t actually require members of Congress to be physically present. Rather, the House simply never passed a resolution saying they were “closed” for the month of August.
The problem with that argument, though, is that the Constitution refers to the Senate’s recess, not the House’s recess. But, for continuity purposes, the Constitution requires that for either chamber to take more than a three-day break, the other chamber must give its approval. So the Senate couldn’t itself go into “recess” because the House refused to acquiesce. So it seems like this is a bit of a gray area.
But here’s the new twist that came out of the childish fight over on when to schedule a speech that might make it a little less gray. The reason that Speaker Boehner refused to schedule Obama’s jobs speech to a joint session was that the House was, in fact, not in session! In a letter on Wednesday to the president, Boehner claims:
And as the Majority Leader announced more than a month ago, the House will not be in session until Wednesday, September 7, with votes at 6:30 that evening.
So, if they’re not in session to pass a resolution to “receive” the president for a speech, then they can’t be in session to block the president’s recess appointments.
Maybe Congress is closed. Or maybe it’s open. Who knows? But it would be easier if they had one of those flashy neon signs, that’s for sure.