When we were all kids, "recess" was one of the happiest words in the English language, because it meant escaping the schoolroom for a while, and (on nice days) getting outside and running around and playing with our friends. The bell would ring, and we would all cry "Recess!" and run outside.
Would we have been just as happy if the word was not used, and we were still allowed to go outside and play? Yes, we would have. If the teacher stood up and announced in stentorian tones "We will all now adjourn to the playground" would we have been equally as joyful? Once again, yes.
Not to belittle the constitutional spat currently taking place in Washington, but I thought it best to put it into some sort of perspective. The reality of having fun on the swingsets and monkey bars far outweighed whatever it was called.
Getting away from the halls of the elementary school, and back to the halls of power in the Capitol, we are left with an argument over what the words "recess" and "adjourn" actually mean. Stripped of all the partisan bias, this is what the constitutional disagreement boils down to.
Let's review the relevant text. Here are the excerpts from the text of the Constitution which refer to this issue:
Article I, Section 5
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.
Article II, Section 2
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
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.
Article II, Section 3
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The problem is, that's all it says. It does not define "adjourn" or "recess" at all. Leaving both terms open to interpretation. Congress adjourns at the end of every day it is in session. It adjourns over weekends. Article I says that neither house can adjourn for more than three days without the consent of the other. But it doesn't say a word about what a recess is. The word "recess" only appears twice in the entire text of the Constitution, and one of them is irrelevant (twice-over -- because it refers to the recess of state legislatures, and because the clause has been changed by amendment). The only time a recess of the U.S. Congress is addressed is in Article II, Section 2 (quoted above).
Which, of course is why we have both lawyers and politicians -- to argue over such hairsplitting. What it all boils down to is President Obama reclaiming power (not "grabbing" it) that Congress has been usurping for the past few years. But we'll get to that in a minute.
A few weeks back, I encouraged Obama to use the power granted to him in Article II, Section 3, and just declare Congress adjourned ("he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper"). This, however didn't happen, which is a shame because it would have given rise to an enormous grammatical battle over one of those commas (the one after "Adjournment") which would have allowed me to quote my second-most-favorite grammatical joke -- the one about the panda.
[Brief Humorous Interlude: Haven't heard it? A panda walks into a restaurant. He orders all kinds of food, and immensely enjoys consuming his meal. Because of such an extraordinary event, the proprietor of the restaurant personally delivers the bill to the panda's table. The panda whips out a pistol, shoots the man dead, gets up, and heads for the exit. Horrified, one of the waiters stops him and screams, "What did you do that for?!?" The panda replies, "I'm a panda. Look it up." The panda then exits the restaurant. The grief-stricken waiter consults a dictionary, where he finds the entry: "Panda: A large black-and-white bear-like mammal. Eats shoots and leaves." Heh. Commas can be important, can't they?]
Where was I? Oh, right, whose power is being grabbed.
As far as I know (I have, admittedly, not fully researched this), while recess appointments have been made previously, Obama just did so in a novel way. However, he did so because it was a novel situation. And, to be fair, Democrats started this game of hardball.
Back when George W. Bush was president, Democrats gained control of Congress. For the final two years of his term, the Democrats refused to let Bush make any more recess appointments by the parliamentary tactic of holding pro forma sessions of Congress over what had traditionally been vacations (or recess periods). Every three days, a member of each house from close to D.C. (Maryland or Virginia, for the most part) would gavel a session in, and then swiftly gavel it adjourned. Usually, this was done to an absolutely empty chamber. The whole process took a minute or two. But because legally Congress was de facto in session, Bush (as far as congressional Democrats were concerned) was powerless to make recess appointments. Bush chose not to push the issue.
But here's the key -- even though Bush seemed to agree with them, it didn't mean the Democrats were right in their legal interpretation of the situation. What they were doing, in essence, was usurping a legitimate executive power from Bush -- the power spelled out in Article II, Section 2 (above).
Fast forward to today. The positions are reversed, and Republicans in Congress are now using this gimmick to keep a Democratic president from making recess appointments. But Obama, in essence, said "I don't agree with your reading of the situation, and therefore I am duty-bound to exercise the constitutional power of my office."
Of course, this is an overly-generous reading of the situation through Democratic eyes. Republicans, to put it mildly, don't see things the same way at all.
But that's where we enter the Twilight Zone of constitutional power struggles. Newt Gingrich, a few weeks back, said some extraordinary things about federal judges, but his main point was kind of lost in the fray -- that these constitutional "crises" happen a lot more frequently in American history than most people realize. There are no hard-and-fast rules between the three co-equal branches. The power struggles drift one way and another over time, but few of them ever get completely solved to everyone's satisfaction. Examples abound, from Marbury v. Madison to Andy Jackson ignoring what the Supreme Court ruled on his "Indian removal" policy, to Lincoln, to F.D.R., and to George W. Bush ignoring subpoenas to have Executive Branch officials testify before Congress.
While Republicans will likely be portraying Obama's move as some sort of unthinkable power grab, in fact these sorts of things happen on a regular basis. Until the Supreme Court rules on it (and sometimes, not even then), nobody has the final answer as to what is acceptable and what is not.
Republicans do have a fair point about how Democrats are "having their cake and eating it too," since they used the tactic against Bush and now Obama is ignoring the same tactic. But that's neither here nor there. Short of impeaching him, there's nothing Congress can do except perhaps seek a court ruling in their favor (a long process).
The only thing that's indisputable is that by his action, Obama has burned this particular bridge for Democrats for the future. When the positions are reversed again (as they almost certainly will be at some point), a Republican president is going to follow Obama's precedent, and ignore Democratic parliamentary shenanigans. Which is probably how it should be, when considering what the original intent of the Constitution's framers truly was. The power of recess appointments is, itself, a check on the power of the Senate to delay a presidents' nominees. That's how it always has been used, and now it will return to its traditional way of working.
The entire thing boils down to a question which has no clear answer: what does "adjourn" and "recess" actually mean in the Constitution? There are legal precedents to consider, but there is no clear definition of either one of these terms within the text itself, so it is impossible to tell how any court would rule on the question.
[Program Note: This subject proved a lot more complex that I had initially thought, so this post should be seen as only half of the argument. I tried to keep, here, mostly to the constitutional half of the argument, and will be dealing with the more political aspects of the situation in a future column (perhaps tomorrow, perhaps Monday). My apologies for the unfinished nature, but I was constrained today by dealing with the auto fixit place, and will also be so constrained tomorrow. Call this article a starting point for the discussion, rather than a fully-developed stance.]
[Grammatical Joke Note: I know you're probably wondering, so here goes. My all-time favorite grammatical joke involves a yokel from the wilds of Texas who gains admission to Harvard University. He arrives as a freshman, and is walking around seeing the marvels of the campus. He stops an upperclassman and asks in a friendly manner, "Excuse me, where's the library at?" He is met with a look of horror, and the response (in your best mental snooty New England accent): "Here at Hah-vahd, we do not end our sentences with a preposition." The Texan's smile doesn't budge an inch, and he cheerfully asks: "Oh, I'm sorry. Where's the library at, Asshole?"]
-- Chris Weigant
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