Friday the Wall Street Journal and the New York Times published warring op-ed pieces regarding the constitutionality of President Obama’s recent appointments to the Consumer Financial Protection Bureau and the NLRB. Neither agency has been able to function because the Republicans refuse to appoint a Chair for the former or enough members to allow a quorum for the latter.
Ordinarily, when the Senate refuses to appoint someone the President regards to be important tasks, he waits until the Senate recesses and appoints someone then (the appointment is good until the “End of their next Session”). The problem is that the Senate is claiming to be in session for the purpose of preventing Obama from making recess appointments. Typically, the Senate is called to order every three days and adjourns shortly thereafter with an understanding that no business will be conducted.
Two lawyers who served in the Reagan and George H.W. Bush administrations argue in the Wall Street Journal that the Obama appointments are unconstitutional because the Senate is not in recess (they point out that after these pro forma sessions started the Senate came back to adopt the payroll tax holiday). Indeed, the Constitution provides that neither the Senate nor the House can adjourn for more than three days without the permission of the other legislative branch, and no such permission has been granted. Apparently, the Chamber of Commerce plans to take their argument to court.
But Larry Tribe argues in the New York Times that these pro forma sessions are a sham, not a recess. He concedes that the original constitutional purpose of recess appointments assumed difficulties of transportation for Congress to return to conduct important business. In modern times, Tribe argues that recess appointments are necessary as a part of checks and balances in our Constitution. From the perspective of an originalist like Justice Thomas or Scalia, of course, the horse and buggy interpretation is correct. From the perspective of those who believe fundamental constitutional principles should control constitutional interpretation, the problem is slightly more complex. It is not clear that the principle of checks and balances lay behind the recess appointment’s clause. Nonetheless, it seems to me that in the absence of a necessary interpretation on the other side, constitutions are best interpreted in ways that make them functional and just. Our Constitution imagined a Senate that would function as a wise and deliberative body. It did not imagine that a minority would filibuster most appointments and bring government to a halt. The Constitution need not be interpreted to protect this bad faith behavior. Recess is not defined in the document, and nothing requires that it be interpreted to ratify a sham. As Justice Clark once said, “There is no war between the Constitution and common sense.”