Much has already been written about President Bush’s 17 recess appointments announced on Thursday, many of them extremely controversial. It’s an old trick meant to get around those pesky Senate confirmation hearings. Every president uses it to one degree or another. Ronald Reagan made 240 during his two terms. George H.W. Bush made 77 in his one term. Bill Clinton made 140 in his two terms. George W. Bush made 110 in his first term. But these
appointments are different. Based on precedent, the appointments would expire at the conclusion of the next session of the Senate at the end of 2006. But this president, in an interpretation that can only be termed bizarre, is insisting that a one-minute ceremonial pro forma meeting of the Senate that occurred on Tuesday, January 3rd, represented the opening meeting of the second session of the 109th Congress, which he interprets as giving life to his recess appointments until the end of 2007 rather than 2006.

Largely lost amidst the outrage being expressed over the appointments themselves was an unusual twist reported without elucidation by the Associated Press and carried by hundreds of newspapers:

Under the Constitution, the president may avoid the Senate confirmation process and make appointments while the chamber is in recess. Such appointments usually are short-term, expiring at the end of next congressional session.

But because the Senate held a pro forma session Tuesday and then adjourned, the White House contends the second session of the 109th Congress has begun. Therefore, the White House believes Bush’s nearly 20 recess appointments are valid until the following session, which won’t conclude until the end of 2007.

You might well be excused if you did not know that the Senate was in session this past Tuesday. It wasn’t covered by the media. No business was conducted. No legislation was enacted. The roll was not called. If it had been, there would have been no Senators present to answer “here.” Confused? The answer lies in small print on the home page of the Senate web site:

Tuesday, Jan 3, 2006

The Senate convened at 12:00 noon for a pro forma session only and adjourned at 12:01 p.m. No record votes were taken.

Still confused? The rationale for this pro forma session of Congress can be found in Article I; Section 5 of the Constitution of the United States:

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting


Which the Senate web site explains as follows:

This section was included to prevent either chamber from blocking legislation through its refusal to meet. Each chamber takes very seriously its independence of the other body. To avoid having to ask the other chamber for permission to adjourn, the Senate and House simply conduct pro forma (as a matter of form) sessions to meet the three-day constitutional requirement. No business is conducted at these sessions, which generally last for less than one minute.

In other words the White House is interpreting a procedural, entirely ceremonial, one-minute meeting of the two houses of Congress, designed to preserve the independence of the two bodies from one another, as giving the president a green light to make a two-year end run around the Constitutionally mandated role of the Senate to “Advice and Consent” in the appointment of Federal officials.

Article II; Section 2 of the Constitution says:

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.

Surely the authors of our revered Constitution never envisioned technicalities and bizarre interpretations of that document to be utilized to make a two-year end-run around the Senate. In fact, clearly the original intent of the recess appointment was to fill only those vacancies that actually occurred while the Senate was not in session. Back in those early days of the Republic Congress did not meet as often as it does today, and the logistics of late eighteenth century roads and modes of transportation rendered it impractical to call a special session of Congress on short notice. That is what the Founders had in mind when they wrote the recess appointment into the Constitution. Moreover, the Bush interpretation that three-day technical adjournments between pro forma ceremonial meetings of the Senate constitute actual meetings and adjournments between which recess appointments can be made flies in the face of all precedent, as well as all mainstream interpretations of the Constitution. Even recess appointments made during ten-day recesses have stirred controversy as to whether they pass constitutional muster. This new three-day interpretation would seem to be way beyond the pale. Finally, it is extremely doubtful that the framers of the Constitution would have considered Tuesdays pro forma Senate meeting as a legitimate meeting and adjournment for purposes of a recess appointment. The 1828 edition of Webster’s Dictionary defines “adjournment” as “the time or interval during which a public body defers business.” Since the Senate did not formally meet; no votes were taken; and no business was discussed, these ceremonial meetings of less than one minute in duration could hardly meet the criteria of a meeting and an “adjournment,” particularly as the terms were understood when the Constitution was written. Doesn’t the Bush administration consider itself one that believes in a strict constructionist interpretation of the Constitution?

If the Senate allows the Bush administration’s view that these are valid two-year recess appointments to prevail, they will be ceding unprecedented (and very likely unconstitutional), power to the Executive Branch — not to mention abrogating their own right and responsibility to “advice and consent.”

Perhaps even some Republicans in this most partisan of Congresses will finally stand up to this White House’s blatant usurpation of the powers bestowed upon it by our Constitution. If not it may be time to ask whether we still live in a democracy.

(Now cross-posted
at Daily Kos. If you agree that this is important please recommend).

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