Constitutional Scholar: White House Entirely Ignoring Article 1, Section 5
By Fred Lucas
January 5, 2012
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President Barack Obama shakes hands with Richard Cordray before speaking about the economy, Wednesday, Jan. 4, 2012, at Shaker Heights High School in Shaker Heights, Ohio. In a defiant display of executive power, President Barack Obama on Wednesday will buck GOP opposition and name Cordray as the nation’s chief consumer watchdog. Outraged Republican leaders in Congress suggested that courts would determine the appointment was illegal. (AP Photo/Haraz N. Ghanbari)
(CNSNews.com) – John C. Eastman, a professor at Chapman University School of Law who is an expert on the constitutional separation of powers, says that the White House simply ignored the section of the Constitution, which governs when Congress can adjourn, when President Obama claimed to use the “recess” appointment power on Wednesday to name a director to the Consumer Finance Protection Bureau and three members to the National Labor Relations Board.
Eastman says that under the terms of the Constitution Congress was not in recess this week, it was in session.
“They’re ignoring that the recess clause was designed to fill vacancies that occurred during the recess. These did not,” said Eastman. “They are ignoring entirely Section 5, Article 1. The Senate doesn’t have the authority to recess without the House’s approval even if they wanted to. So Carney’s claim that this is just a gimmick completely ignores that the House didn’t authorize them to leave at all.”
Article 1, Section 5, Clause 4 of the Constitution says: “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.”
Because the Republican-controlled House did not allow the Senate to adjourn, neither House was in recess.
Eastman, however, also said that the Senate in the last two decades has given a more expansive meaning to advise and consent than the founders envisioned. The intent, Eastman said, was to provide a check to prevent the president from appointing relatives or other unqualified people to high government posts.
The White House asserts that the so-called “recess appointments” Obama made on Wednesday are constitutional because Congress was out of session for a “sustained period of time.”
“Our assessment is that Congress has been in recess and has made every indication that it will be in recess for a sustained period of time, and that gaveling in and gaveling out for seven seconds does not constitute a recess with regard to the president’s constitutional authority,” White House Press Secretary Jay Carney said Thursday.
“If these gimmicks were all a Senate needed to do to prevent the president from exercising his constitutional authority–any president–then no Senate would, I mean, no president would ever be able to exercise it,” said Carney.
Article 2, Section 2 of the Constitution says that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. 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.”
Despite this constitutional language, Obama made his appointments without Senate approval.
Obama named former Ohio Attorney General Richard Cordray as director of the CFPB. He also named to the NLRB, Sharon Block, a deputy assistant in the U.S. Labor Department who once worked with the late Sen. Ted Kennedy; Terence F. Flynn, chief counsel to NLRB Board Member Brian Hayes, a Republican; and Richard Griffin, the general counsel for the International Union of Operating Engineers. Griffin also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994.
The constitutional legitimacy of these appointments will be questioned, said Russell Weaver, a professor at the Louis D. Brandeis School of Law at the University of Louisville.
“My guess is the president’s action is illegal,” Weaver told CNSNews.com. “You can be confident there will be a court challenge the first time this newly, allegedly appointed director takes an action where money is involved. I don’t think there is any doubt this will end up in the courts and go on for years. If it’s struck down, it would undermine everything that’s done in the meantime.”
Both the executive and legislative branches–and both parties–have historically exceeded their roles in the appointment process, said Bob Turner, a professor at the University of Virginia School of Law.
“The clear purpose of the recess appointment clause was not to permit the president to undermine the Senate’s constitutional negative if senators go home for the night or take a three-day weekend, but to permit the government to continue functioning when the Senate elects not to do business for an extended period of time,” Turner told CNSNews.com. “The length of that time ought to be established in good faith and reasonableness based upon the totality of the circumstances–what is the vacancy and how urgent is it for the nation to fill the position before the Senate is likely to return to do such business?”
“I would add that this controversy is a consequence of constitutional impropriety on both ends of Pennsylvania Avenue,” Turner said. “Rather than limiting their review to assuring that ‘no unfit person’ be appointed–blocking the appointment of unqualified relatives, college roommates, big financial contributors, and the like–the Senate too often perceives its role as preventing the president from having advisers and subordinates who share his political views.”
Michael Rappaport, a professor at the University of San Diego School of Law, said recess appointments can be problematic. “I don’t think the Constitution gives the authority under its original meaning,” Rappaport told CNSNews.com. “Even under the precedents, it is a dicey question. Under the current law, it is not clear, although I would argue that the stronger side suggests the president does not have the authority.”
There is a strong argument that the president’s power to make recess appointments was intended to apply only when Congress was out of session, but it’s not entirely settled, said Brian Kalt, a professor at Michigan State University College of Law.
“That still leaves the question of what to do when, as now, the Senate claims that it is staying in session by holding these pro forma meetings every few days. The president can argue that this doesn’t count as being in session, because the Senate isn’t really ready to do any business like voting on a nomination,” Kalt told CNSNews.com. “Alternatively, he can argue that the time between these pro forma meetings constitutes a recess.”
“The bottom line is that nobody knows for sure because it has never really been resolved in court. Presidents have pushed the boundaries on this and while Senates have protested, nobody has stopped a president yet,” Kalt continued. “This time, the president is pushing the boundaries further. It’s hard to get a reviewable case out of these situations. I think that this time we might get one, though.”
Asked if the White House sought legal advice from the Justice Department, Carney was not specific.
“I think I actually can say that we routinely consult with the Department of Justice on a range of legal matters, but we also routinely don’t delve into the specifics of any confidential legal guidance that the president or the White House in general would receive in the course of those consultations,” Carney said. “So, I mean, I think that’s just standard operating procedure.”
Carney also said, “We feel very strongly that the Constitution and the legal case is strongly on our side. But more importantly, this isn’t about process. This isn’t about whether or not Congress is in session. If I could digress for a minute, I think all of you could run up to Capitol Hill and check out the House and Senate and see if you can find a single member of Congress and tell me on this working day across America if Congress is in session.”