Recess Appoint Peter Diamond: Senate Pro Forma Sessions Do Not Limit Obama's Recess Appointment Authority

The pattern of confirmation conflict that has escalated for twenty years has reached a level of unprecedented Senate obstruction. A new level of assertive executive response is required.
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Federal Reserve nominee Peter Diamond has been blocked for months by Senate Republicans. The Obama Administration wasted no time repeating the plea for his confirmation after Diamond took home the Nobel Prize in Economics on October 11, 2010.

A White House statement released after the Stockholm announcement began: "Despite being heralded by the Nobel Committee for his groundbreaking work with applications in a wide range of areas like unemployment and housing, Peter's nomination to the Federal Reserve Board of Governors continues to be held up by a partisan minority in the Senate. Obstructing a nominee as well-qualified as Peter in a time of economic crisis is a harmful attempt to score political points that hurts our middle class and our broader economic recovery."

The Senate was asked to quickly confirm Diamond and dozens of nominees "so they can help carry out the people's business and move this country forward."

Meanwhile the Republican obstructionists have left the Senate for a six-week recess, playing obstruction in absentia. Senate GOP leaders won a concession from majority leadership to schedule pro forma sessions during the long campaign break.

Every three days, a senator acting as presiding officer gavels the Senate open and shut -- it takes 30 seconds. No pledge of allegiance or opening prayer, and no business conducted in the near-empty chamber. Republicans forced the sham scheduling believing it would prevent Barack Obama from making recess appointments. But the assumption that pro forma sessions prevent recess appointments is incorrect.

As my commentary "Pro Forma Follies" in this week's National Law Journal explains, Obama can and should make recess appointments during the six-week campaign break. MIT professor Peter Diamond, former mentor to Ben Bernanke, is the perfect candidate for a recess commission.

No Minimum Recess Required

The Constitution does not require a minimum recess period in order for the president to make recess appointments. In 2004, the U.S. Court of Appeals Eleventh Circuit refused to establish a time limit, stating instead that the Constitution "does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President's appointment power under the Recess Appointments Clause."

In prior years, the Ninth and Second Circuits also had upheld recess appointments during short, intrasession Senate breaks.

Theodore Roosevelt recess appointed over 160 officers during a Senate recess that lasted less than one day. T.R. took seriously his constitutional obligation under Article II, Section 2, Clause 3, to keep the government fully staffed. He would not have suffered Senate obstruction or allowed media misinformation about his constitutional authority to go uncorrected.

Media Misreports Sham Sessions

Media repeatedly misreported the legal effect of the Senate pro forma sessions.

Consider The Hill: "Under the law, the president can only make a recess appointment if the Senate is adjourned for more than three consecutive days. By scheduling pro forma sessions twice a week, lawmakers can take away Obama's ability to make recess appointments."

And Politico: "By technically staying in session about twice a week, Obama won't be able to use his constitutional authority to bypass the Senate and install political appointees temporarily during extended recesses."

But, these statements are inaccurate. There is no such law and Obama's constitutional authority is not trumped.

The New York Times described the sessions as a "strategic ploy" yet misstates that the tactic "blocks" the president from exercising constitutional appointment authority.

Reliably insightful Ezra Klein of the Washington Post reflected that a "broken" confirmation process" had become "more broken" with the scheduling. He highlighted two important blocked nominations -- Peter Diamond for the Federal Reserve and Jack Lew to be OMB head. However, Klein followed the media pack, linked to The Hill's misreport, and incorrectly asserted that the fake sessions "end the president's ability to make recess appointments."

The news media is not alone in repeating the myth that a three-day minimum recess is required for recess appointments. Some academics expose their strong bias against recess appointments by parroting the three day minimum requirement. Other commentators uncritically accept the self-serving congressional definition of recess as being "more than three days."

Clever Argument, But Not Law

As referenced in the NLJ commentary, the nonpartisan Congressional Research Service traces the origin of the three-day minimum recess fiction to various Justice Department analyses, in particular, a 1993 brief implying the three day minimum might control.

The brief, however, incorrectly applied the Article I, Section 5 Adjournment Clause. The provision forbids either the Senate or House of Representatives "without the Consent of the other" to "adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting."

The brief misapplies the Article I Adjournment Clause to the Article II Recess Appointments process. The brief weakly suggests that it "might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant." Today, academics expand on the brief's original intent speculation. They assert that the Framers thought any break of three days or less was de minimus for purposes of presidential recess appointment.

Clever argument, but not the law. It is not helpful that the three-day recess fiction is repeated by government lawyers as if it were the law.

Bush's Failure

Perhaps it is George W. Bush's fault that the media erroneously reported that Obama's recess appointment authority is lost. When majority leader Harry Reid first used the pro forma tactic against Bush over Thanksgiving, 2007, the 43rd president failed to push back.

Bush did not recess appoint for the remainder of his term despite calls for him to call Harry Reid's bluff. A commissioning of even one noncontroversial nominee to a low level position would have asserted the executive's prerogative. His failure to do so may be mistakenly interpreted as setting a precedent. It does not.

As I have noted on this site, Harry Reid appears to have gotten the better of George Bush; bluffing is a basic gambling skill for separation of powers and Texas Hold 'em.

Perhaps Bush was bluffed by Reid, misadvised by counsel or just weary of fighting appointment battles. But President Obama can succeed where Bush failed.

Recess Appointments on Wednesday, November 3rd

The pattern of confirmation conflict that has escalated for twenty years has reached a level of unprecedented Senate obstruction. A new level of assertive executive response is required.

While there is no minimum time required for a recess, timing is critically important during a campaign. There is no need to motivate the over-caffeinated Republican base by announcing recess appointments just prior to the general election.

But Barack Obama has a right to end the calendar year with a fully staffed administration. And, he has an institutional duty to protect the constitutional appointment prerogatives of the 45th president.

Nobel Prize winner Peter Diamond could be at his desk at the Fed before lunch on Wednesday, November 3, 2010.

Victor Williams is an attorney in Washington D.C., and a clinical assistant professor at Catholic University of America School of Law.

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