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Debate Continues Over Recess Appointments; House Resolution, Bill Target Obama's Action

Publication Date: 
January 23, 2012
Source: 
Daily Labor Report (BNA)
Author: 
Lawrence E. Dubé

Professor Michael W. McConnell discussed the constitutionality of President Obama's recess appointments and the potential challenges that the president may face as a result. The Daily Labor Report's Lawrence E. Dubé has the story.

President Obama's recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau remain controversial and will clearly be the subject of continuing disagreement both inside and outside the government, as a Jan. 18 debate sponsored by the Constitution Project showed.

Law professors Peter Shane and Michael McConnell reviewed the arguments for and against the constitutional validity of the recess appointments announced by the president Jan. 4, but both agreed that the dispute will end up in the courts when parties challenge the validity of actions taken by the recess appointees.

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Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit and assistant to the solicitor general of the United States, now teaches at Stanford Law School. McConnell said the principal question underlying the dispute about the NLRB and CFPB appointments is whether the Senate's short pro forma sessions “are sessions or not.”

McConnell said under Senate rules, the brief pro forma events are considered legislative sessions. He observed that a Senate procedural manual describes pro forma sessions as being “short sessions,” but does not distinguish them from sessions where business is conducted.

In fact, McConnell observed, “business can be and is conducted” in such brief sessions, noting that the December 2011 extension of a payroll tax reduction was approved in a pro forma Senate session with the unanimous consent of senators. “President Obama signed that bill, and he must have believed it was properly enacted,” McConnell said.

But he observed that of the three NLRB nominees who received recess appointments, Democrats Block and Griffin were named by the president only days before the Senate left town for the holidays. Arguments about the president's need to provide for continued functioning of agencies do not justify action that “was plainly a way of avoiding the advice and consent function of the Senate,” McConnell argued.

He asserted that the Senate is capable of acting by unanimous consent of senators without all of the Senate's members present, recalling that his own nomination to serve on the Tenth Circuit was approved by unanimous consent with only two senators actually present on the Senate floor. “It is quite clear the pro forma sessions are a meeting of Congress,” he said.

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Both law professors said they expect to see multiple court challenges to the recess appointments, particularly when NLRB and CFPB take actions that can be attacked as invalid due to improper appointments of the NLRB members and the CFPB director. McConnell said he does not expect courts to shy away from the dispute as a “political question,” and Shane agreed.

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But McConnell said “if this precedent” on recess appointments “holds,” the government could some day confront a president who attempts to make a recess appointment to the Supreme Court. That, McConnell said, would be “a rather frightening proposition.”