Andrew M. Grossman
Heritage Foundation Visiting Legal Fellow
Professor Mazzone's clever argument that, due to national-security interests, the President has the power to decree that Congress is in recess and make such appointments as he wishes explains too much, but unfortunately not the two things that matter: the constitutional text and structure.
Let's start with the text. Article II, section 2, provides that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States." The subsequent clause provides that the "President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." Yes, as Prof. Mazzone observes, these provisions in the same section as clause declaring the President "commander in chief"; for what it's worth, so are the provisions authorizing the President to seek written opinions of his cabinet and to "grant reprieves and pardons." Proximity only proves so much.
The challenge of interpreting the Constitution's "odd clauses" is to give them meaning consistent with text and history, without rendering any a nullity. Prof. Mazzone, as well as the Obama Administration, run aground on a few well-marked shoals:
First, let's start with the big-picture view: if Congress can pass a bill, it must be in session. Congress did, in fact, pass a bill during one of the "pro-forma sessions" that the President now claims may actually be a recess. But guess who signed that bill into law . . . . (And once before, in August.) For purposes of passing legislation that he supported, the President accepted pro-forma sessions as what they purport to be: active sessions. Either that, or he simply deferred to Congress's view on the matter.
Second is the requirement in Article I that neither chamber shall, "without the consent of the other, adjourn for more than three days." The House craftily wielded this provision to deny the Senate permission to adjourn. But the President's action, if upheld, would render it a nullity--the Senate could adjourn whenever it likes. Up until now, pro-forma sessions had always been considered sufficient to satisfy this requirement, as well as to satisfy the Twentieth Amendment's mandate that Congress assemble each year on January 3.
Third is the inconvenient case of the "pocket veto." Although a bill passed by Congress but not signed by the President becomes law "within ten days (Sundays excepted) after it shall have been presented to him," that same bill is regarded as vetoed when "the Congress by their adjournment prevent its return." Does a pro-forma session prevent a President from exercising a pocket veto? Yes, most certainly, so long as Congress made arrangements to receive messages from the President. (Wouldn't a parallel requirement go a long way toward satisfying Prof. Mazzone's national-security concerns?)
Fourth, what about Congress's power to "determine the rules of its proceedings"? Typically, the other branches honor its determinations and judgments as to its own actions. For example, when Congress certifies that a particular bill has been enrolled, the courts will presume that Congress observed the requisite procedures in passing it. To be sure, this power isn't absolute--Congress couldn't, for example, originate a tax bill in the Senate--but this is not a circumstance where Congress attempts to act in a manner plainly opposed to constitutional mandate.
Prof. Mazzone's suggestion that the Recess Appointments Clause must be construed broadly in light of the President's responsibility for national security does not answer these points. Nor does it account for the existence of that provision of Article II, section 3, which provides that the President may adjourn the House and Senate "to such time as he shall think proper"--a power that no President has exercised due to its enormous political costs outside the unusual type of crisis context that Prof. Mazzone conjures up. (Then again, others differ in their evaluation of the political costs.)
But let me conclude with two questions for Prof. Mazzone. First, is your reading of the Recess Appointments Clause limited, as some say the text requires and as your rationale would seem to imply, to vacancies that arise during a recess? And second, let's modify the hypothetical: the terrorists attack when every single member of Congress is in town, but partisan discord is such that the Senate, meeting six days each week, is unable to confirm a single nominee over a period of months. In that case, can the President cite national-security needs and make a recess appointment late on a Saturday night, when not even the C-Span cameras are stirring? And please no cop-outs that it's non-justiciable, because I don't buy it.