George F. Will: Humpty Dumpty over recess

Published: October 11, 2012
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For more than a century, it was generally accepted that recess appointments could only fill vacancies that occurred between sessions, not in recesses during sessions. Of late, however, presidents of both parties have made many recess appointments during short adjournments — as short as 10 days. To limit this, both parties when controlling Congress have adopted the practice of conducting pro forma sessions so the Senate is not in recess even while most senators are away.

It was holding such sessions every three days when Obama abandoned the settled policy of presidents respecting this practice. He treated the Senate's unwillingness to act on his NLRB nominations as an inability to act, and said this inability constituted a de facto recess. He disregarded the Senate's express determinations on Jan. 3 and 6 that it was in session. And the fact that twice in 2011 the Senate, while in such pro forma sessions, passed legislation, once at Obama's urging.

Because the Constitution unambiguously gives the Senate the power to regulate its proceedings, Obama's opinion that the Senate was not in session when it said it was, and his assertion that it was in recess even though it held sessions on Jan. 3 and 6, has no force or relevance. And although he is a serial scofflaw, not even he has asserted the authority to make recess appointments during adjournments of three days or fewer.

The constitutional guarantee of congressional self-governance, combined with the Senate's determination that it was in session Jan. 4, destroys Obama's position, which is that he can declare the Senate in recess whenever he wishes to exercise what the Framers explicitly denied to presidents — a unilateral appointments power. Consider this episode when deciding whether on Jan. 20, 2013, he should again have a chance to swear to (only selectively) defend the Constitution.

George Will's email address is georgewill@washpost.com.

WASHINGTON POST WRITERS GROUP



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