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The 2014 Harlan Institute-ConSource Virtual Supreme Court

March 28th, 2014

Article II, Section 2 of the US Constitution states 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”. Based on the fact that these recess appointments expire at the end of the following Senate session, it would not make much sense to consider a “recess” one which occurs within a Senate session, because this would give the appointee their position for a very short period of time (in most cases, a day). Therefore, the definition of “recess” that was most likely meant by the founding fathers is one that occurs between enumerated sessions of the Senate. It is also important to consider that communication during the time period when the Constitution was written was very slow, and travel between Washington and the home district of the congressmen (especially if the representative lived in a State that was particularly far from Washington, such as Georgia or Massachusetts) happened less frequently, and the duration of time in between their sessions was much longer. Article I, Section 4 of the Constitution states that “Congress shall assemble at least once in every Year”. If Congress was only meeting once a year, giving the President the power to make recess appointments makes much more sense than it does today. In addition to the long travel times, a majority of congressmen were preoccupied with other jobs, as being a member of the House of Senate paid very little, so the politicians also had businesses or farms to make money, which also played a role in their willingness to drop everything to come to Washington. Therefore, it was almost a necessity for the President to have the recess appointment power; otherwise, a seat may be left empty for an entire year, which would greatly affect the bureau involved. However, today, Congress meets much more frequently than in the 1700s, so this power is much more trivial, because the appointments last much shorter period of time.

In theory, any vacancies that occur while the Senate is in session should be filled with bureaucrats that are appointed by the President and approved by the Senate. Of course, the founding fathers probably did not foresee things such as filibusters, and therefore there would be no need for a President to fill a vacancy that occurred while the Senate was in session. Today, however, there is a clear need for the President to have to ability to fill vacancies if the Senate does not act during a session, because waiting for the next session would leave the vacancy open for an even longer period of time, which could lead to agencies being crippled, and in some cases, completely useless. Therefore, the power of the President to fill vacancies should be expanded to allow him to make these appointments during sessions that are ineffective, such as when a senator conducts a filibuster. This should be the case because of the nature of a filibuster itself. Senators use filibusters to stop a law from being voted on, or more broadly speaking, to slow down the Senate. According to Senate Rule XXII, sixty votes are required to stop a filibuster in a process known as cloture (unless they are discussing the appointment of a mid-level federal judge, in which case fifty votes are required). Currently, there are 54 Democrats, 44 Republicans, and 2 independents in the Senate. This makes it incredibly difficult to reach the sixty-vote requirement, as a party is likely to support its fellow members in a filibuster. Because of this, Senate decision-making is slowed down incredibly, making it nearly impossible for them to confirm or reject appointments made by the President, which would justify the extension of his power of recess appointments to times when the Senate is ineffective, such as during a filibuster.

A pro forma session is a session of the Senate in which usually one member declares they are in session and leaves, and therefore nobody is present in the Senate and no business is being conducted. The glaring problem with these sessions is that nothing can actually happen, due to the fact that nobody is really there. Unfortunately, this session is still technically considered a session of Congress under the current rules, and it must be treated like one for this reason. Therefore, the President does not have to power to make recess appointments during these pro forma sessions; additionally, going back to an aforementioned point, appointments made during a pro forma session (if it were to be considered a recess) would expire in a matter of days, because the Constitution states theses appointments expire after the end of the next session. This system should be changed, however, due to the fact that it is a transparent abuse of authority by the Senate in order to prevent government institutions from running effectively. The Senate typically holds pro forma sessions for the exact reason that it prevents the President from making any appointments, as he would need approval from a Senate that is not currently there. Although they declare that they are in session, they obviously are not present, and therefore the President should be able to make recess appointments to fill the vacancies and keep these government institutions stable until the Senate decides to be present during their “sessions”. However, these appointments should not be permanent, as the previously stated Article II Section 2 of the Constitution says that these should end once the Senate has a session. Sessions should be determined by the actual presence of the Senate, not whether they say they are in session or not.