Even Obama Agrees that the Senate Was Not in Recess

Defenders of President Obama’s unprecedented “recess” appointments of Richard Cordray to the new Consumer Financial Protection Bureau and three members to the National Labor Relations Board argue that the Constitution is vague on when Congress is in session and that the President can therefore take a “functionalist” approach that considers whether the Senate is available to vote on nominations.

Yet even the President doesn’t buy that argument.

Proof is that on December 23, President Obama signed a two-month extension of the payroll tax cut.  He said that Congress passed the bill “in the nick of time” and that it was “a make-or-break moment for the middle class in this country.”  The compromise extension really did come through at the last minute, but in a different sense: most members of the Senate had already departed Washington, D.C.

That’s why on December 17, the Senate agreed to an order instituting “pro forma” sessions, of the kind the President now claims are actually recess.  (See the PDF of the Congressional Record here.)  But it was at one of those sessions, on December 23, that the Senate passed the payroll tax cut extension that the President signed into law later that day.  (Again, see the Congressional Record entry.)

Of course, if the Senate was actually on recess that day, it couldn’t have passed the bill, and the President couldn’t have signed it into law.  (The President has not claimed—at least, not yet—that he can enact laws that have not passed Congress.)  But in that case, the President chose to respect the Senate’s own view as to whether it was open for business.

And he was right to do so.  The Constitution empowers the Senate to “determine the rules of its proceedings,” and that’s just what the Senate did by scheduling pro forma sessions at the end of the year.  That much of the Senate was out of town is irrelevant, as passage of the tax cut extension demonstrates.  Indeed, the Constitution specifically provides that, although it states that “a majority . . . shall constitute a quorum to do business” in the Senate, “a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members.”  In this way, the Constitution specifically authorizes rump sessions that, if necessary, can recall the rest of the body to conduct vital business.

Nothing even suggests that the President gets to overrule Congress on this point.  To the contrary, the Constitution prevents either chamber from adjourning for more than three days “without the consent of the other” and, while it requires that all bills and resolutions be presented to the President for signature or veto, carves out a sole exception for votes “on a question of adjournment.”

It is little surprise that an Administration which finds the Constitution flexible enough to support an individual mandate for individuals to purchase health insurance would also argue that its seemingly clear text is sufficiently pliable to empower the President to overrule Congress’s decision that it’s actually in session.

But to make that argument less than two weeks after embracing the very opposite position, that takes chutzpah!