What's next? Appointing executive branch officials when the Senate is taking a lunch or bathroom break?
In November 2007, Senate Majority Leader Harry Reid declared the Senate in pro forma session for the two-week Thanksgiving break. Every three days, a handful of senators would gavel the Senate into session and gavel it out just a few minutes later. These pro forma sessions would continue until the end of George W. Bush's presidency in January 2009. Republicans were furious at this deliberate ploy to keep Bush from making recess appointments by never declaring a formal recess.
Yet it was widely regarded as the Senate's constitutional prerogative to declare when it was and was not it recess. As noted by the nonpartisan Congressional Research Service and reported by Politico, Bush "made no recess appointments between [Democrats'] initial pro forma sessions in November 2007 and the end of his presidency." The view that presidents could not make appointments during pro forma sessions also seemed to be the Obama administration's position when then-Acting Solicitor General Neal Katyal told the Supreme Court in 2010, "I think our office has opined the recess has to be longer than three days."
But now, by taking it upon himself to declare the Senate in "recess," when per agreement with the GOP-led House it was again in pro forma session, President Obama has made an executive power grab that is unconstitutional and unprecedented. Even Teddy's Roosevelt's constitutionally questionable appointments cited as antecedent occurred in the brief interval between two official sessions of Congress in 1903. But President Obama did not avail himself of this option when he had such an opportunity between sessions on January 3. Instead he made the appointments upon going to a political rally the next day, using only the thin justification that no senators were on the floor.
Democrats now cheering Obama's action will rue it when the time comes--perhaps in the not too distant future--that there is a Republican president and Democrats control one or both houses. If the president can make "recess" appointments any time the Senate is not occupying the floor, what's next? Appointing executive branch officials when the Senate is taking a lunch or bathroom break?
Ironically, Obama justified the appointments of Richard Cordray to the Consumer Financial Protection Bureau and the three members of the National Labor Relations Board as necessary to ensure "accountability" of the private sector. But lack of accountability in government doesn't seem to bother this president.