President Obama Just Got His Recess Appointments Power Back
Senate Majority Leader Harry Reid’s (D-NV) office tells ThinkProgress that the Senate is now adjourned until Monday, July 8, with no “pro forma” sessions planned during the coming week. This is significant because these pro forma sessions, sham sessions where a single senator briefly gavels the Senate into session for a few minutes, are a legally controversial method the Senate uses to cut off the president’s recess
appointment power. Without these sham sessions, President Obama’s power to recess appoint several officials currently being filibustered by Senate Republicans likely just roared back to life.
Admittedly, an unusually conservative panel of the conservative United States Court of Appeals for the District of Columbia Circuit held earlier this year that the president’s recess power does not exist unless it is invoked during a very brief period that occurs once ever two years, among other things. This widely criticized opinion, however, is unlikely to be upheld by the Supreme Court because it would require the justices to retroactively invalidate literally hundreds of recess appointments in just the last several presidencies.
Significantly, while the Supreme Court agreed to review the D.C. Circuit’s decision, it asked the parties to brief an additional question that the lower court did not decide in its sweeping opinion — “[w]hether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.” This is a strong indication that the justices may be willing to uphold the power of pro forma sessions to nix the recess appointments power, but they are not willing to cast the past actions of hundreds of former government officials in doubt.
Significantly, President George W. Bush recess appointed Judge William Pryor to the United States Court of Appeals for the Eleventh Circuit during a ten day recess similar to the one the Senate just begun. The United States Court of Appeals for the Eleventh Circuit — the highest legal authority to consider how long a recess must be to permit a recess appointment before the Obama presidency –upheld this recess appointment. Indeed, the Eleventh Circuit’s opinion would also permit recess appointments during pro forma sessions. As this opinion explained, “[t]he Constitution, on its face, 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.”
http://thinkprogress.org/justice/2013/06/28/2232881/president-obama-just-got-his-recess-appointments-power-back/
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