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Advise and Dissent

The recess appointment power: a slow-motion train wreck

Apr 22, 2013, Vol. 18, No. 30 • By JEFF BERGNER
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After a moment’s reflection, both Biden and Lugar seemed satisfied with this news. It would, after all, spare the committee an unpleasant and contentious straight party-line vote. Biden then approached Kerry and explained the situation to him. Kerry also seemed content with the news, thinking that he had successfully blocked the appointment. When Biden convened the meeting, he announced that Sam Fox’s nomination had been withdrawn by the president and that his name would be removed from the agenda. The committee then voted to confirm the remaining nominees and passed several uncontroversial resolutions. The meeting was over in 15 minutes.

What Kerry apparently did not understand at the time was that this was only the first act of a two-act drama. It did not take long for the curtain to rise on the second act. The Senate took its spring break the following week, and during its recess President Bush appointed Sam Fox ambassador to Belgium on April 4. Democratic senators went into high dudgeon. “Unfortunately, when this White House can’t win the game, they just change the rules, and America loses,” said Kerry. Senator Barack Obama, already on the presidential campaign trail, said, “It’s disappointing that President Bush would defy the will of Congress by appointing Sam Fox ambassador to Belgium.” Senator Chris Dodd announced that he would seek a legal opinion. Dodd, Kerry, and Senator Robert Casey sent such a letter to the Government Accountability Office (GAO) on April 5. In its response two months later, the GAO agreed that Sam Fox was not entitled to a salary in his new post but declined to wade into the deeper constitutional issue, saying that an interpretation that prevented Fox from serving in a recess appointment “would raise serious constitutional questions.” A news article that appeared on April 9 noted that Majority Leader Harry Reid was considering various avenues to try to block President Bush’s ability to make recess appointments. One notion—of more than dubious constitutional standing—was to require the resubmission of the nominations of all recess appointments, thus making a Senate vote on Sam Fox once again in order.

In the end, none of these alternatives offered hope of success, and cooler heads prevailed—at least for the moment. As the next long break in August approached, President Bush and Majority Leader Reid came to an understanding: The Senate would confirm a number of nominees prior to the August recess in exchange for a promise from the president that he would make no recess appointments during the August break. That is just what happened.

PRO FORMA SESSIONS

As the next lengthy Senate recess approached, no such deal was reached. Harry Reid announced that during the November 2007 break, he would bring the Senate in for pro forma sessions every three days. These sessions, which lasted less than a minute, would be gaveled to order by a senator who happened to be in Washington and then just as quickly gaveled to adjournment. Reid was not coy about the rationale. The Senate, he said, was “coming in for pro forma sessions .  .  . to prevent recess appointments.”

Why every three days? Couldn’t the president make recess appointments during these three-day breaks? After all, the Constitution is silent—except by inference— about what is a “recess.” In 1993 a (Clinton) Department of Justice brief had suggested that the president could make recess appointments whenever the Senate was in recess for more than three days (Mackie v. Clinton, July 23, 1993). In practice, however, no president had made recess appointments during a Senate break of less than 10 days during the previous two decades. This was the standard adhered to by President Bush as well. It so happened that the April break during which Sam Fox was appointed was a 10-day interlude.

Were pro forma sessions a partisan tactic or a defense of the Senate’s constitutional prerogatives? As we shall see, Harry Reid provided one answer in 2009 and a more definitive answer in 2012. It is sometimes said that Republicans had earlier used pro forma sessions to head off recess appointments and that Reid was simply following suit. This is not true; the assistant Senate historian notes that while Republicans once threatened such a move, they did not employ it. Harry Reid is the only majority leader in the history of the Senate to call the Senate into pro forma sessions for the purpose of blocking recess appointments.

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