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.
Andreas Broscheid
Kathleen Ferraiolo
martycohen17
Tim LaPira
I think the problem is that presidents have misused “recess” appointments based on Article 2 section 9, which was written because congress was meant to only be in session for about 4 months out of the year. Congress was never supposed to be a full time profession.
But now that they have turned congress into a career then they are available to the president for a greater amount of time. If he feels he wants to appoint someone he has plenty of time to do that when congress is in Washington.
Both the GOP and the DNC have used recess appointments to further their party agenda ahead of what is best for the people.
mcoville said this on September 2, 2011 at 6:02 pm |
1. Is there a difference between recess and not being in session? Is it possible that the House is not in session but not in recess either? This is an honest question – I find the two terms always confusing.
2. The Democrats did something similar in Winter 2007/2008, see for example http://www.abc.net.au/news/2007-12-24/us-senate-stays-in-session-to-block-bush/996198?section=world and http://articles.cnn.com/2007-12-26/politics/senate.pro.forma_1_recess-appointments-year-without-senate-confirmation-senate-session?_s=PM:POLITICS.
Andreas Broscheid said this on September 2, 2011 at 9:58 pm |
It seems like the framers of the constitution specifically predicted and outlined the rules of recess appointments, “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”. So the argument against recess appointments is non existent. It seems however, that congress is attempting to find a slighted and non defined strategy of blocking a clearly stated power given to the executive branch. So, either the constitution needs to be amended to outlaw recess appointments; or specific guidelines need to be adopted that determine when and how congress can either be on recess, or suspend a scheduled or expected recess.
James said this on April 23, 2012 at 5:29 pm |