Plausible Absurdities and Practical Formalities: The Recess Appointments Clause in Theory and Practice

The recent controversy surrounding President Obama's recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate was holding pro forma sessions illustrates the need to reach a new understanding of the Recess Appointments Clause of the Constitution. For the Recess Appointments Clause to be functional, it must fulfill two essential constitutional purposes: it must act as a fulcrum in the separation of powers, and it must ensure the continued exercise of the executive power. Achieving this functionality depends not only on the formal constructions of the Clause but also on the ways in which powers conferred under the Clause are exercised-in other words, on the constitutional expectations that the president and the Senate bring to recess appointments practice. The practical constitutional expectations that have governed recess appointments practice have largely prevented the active use of the Clause's many textually plausible absurdities that would utterly disrupt the Clause's functionality. In light of the role that constitutional expectations play in the functionality, and therefore constitutionality, of the Clause, the recent pro forma appointments controversy should not be resolved by the courts. Instead, both the pro forma sessions held by the Senate and the pro forma session recess appointments made by the president present a nonjusticiable political question. By declining to decide the constitutionality of these actions, courts will provide the executive and legislative branch the opportunity to ensure agreement as to both the construction of the Recess Appointments Clause and the attendant constitutional expectations that assure its functionality.[T]hat a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon courts the nurture of that spirit, that spirit in the end will perish.-Learned Hand1IntroductionOn a blustery day in northeast Ohio in January 2012, President Obama announced the recess appointment of Richard Cordray, the former attorney general of Ohio, to the directorship of the Consumer Financial Protection Bureau.2 On the same day, the president also announced that he was exercising his recess appointments power to appoint Sharon Block, Richard Griffin, and Terence F. Flynn to the National Labor Relations Board.3 In making these appointments, the president employed his authority under the Constitution's Recess Appointments Clause, which enables him to make temporary appointments to senior executive branch positions and to Article III courts when the Senate is not in session and available to offer its advice and consent on the president's nominations.Obama's decision to grant recess appointments to nominees that had been blocked by the Republican minority in the Senate was by no means unusual. While the Recess Appointments Clause was perhaps originally intended to ensure the continued functioning of the executive branch during the Senate's lengthy recesses,4 presidents of both parties have exercised their constitutional powers under the Recess Appointments Clause for decades to appoint individuals blocked by opposing parties in Congress.5 In fact, the president's appointments followed recent presidential practice and historical convention to the letter, except for one small detail: the Senate, according to its own proceedings, was not in recess.On the date of Obama's appointments, the Senate was in the midst of holding pro forma sessions-sessions held purely to deny the president the ability to make recess appointments. Pro forma sessions had their genesis in 2007, when Democratic Senate Majority Leader Reid successfully used them to deny President Bush the ability to make any recess appointments during his last fourteen months in office.6 Every three days, a senator would gavel the Senate to order only to adjourn the Senate a minute or two later, thereby carving a longer recess into a succession of shorter recesses and denying Bush a recess of the length sufficient to make a recess appointment. …