Pro Logica

January 20, 2012

Presidential Recess Appointments

Senators and other members of the Republican Party are up in arms about the POTUS appointing three executive officers while claiming the Senate was, in point of fact, in recess when the appointments were made.  These people claim that the Senate was actually in Session since a member came to the chambers and opened a session but since a quorum was not present, immediately adjourned.

Parliamentary law requires a quorum to do any business and the Constitution in Article I, Section 5, specifically states that a quorum of each House be a majority of the members of that House, i.e. it takes 51 Senators to be present at any of their sessions in order to pass any resolution.  (Use of the word ‘quorum’ without definition indicates that the founders were well aware of the laws of proper parliamentary procedure.)  While parliamentary law says that no resolutions may be passed, the Constitution gives those present the power to order the others to attend and may even fine those who don’t come to the next scheduled meeting.  A later paragraph in the same section requires that each House cannot adjourn for more than three days without the other House’s consent.  Nowhere in Article 1 is the word ‘recess’ used, capitalized or uncapitalized.

The word ‘Recess’ is used only once in the entire U.S. Constitution and it occurs in the last paragraph of Article II, Section 2 where it says that the POTUS may fill all vacancies during a Senate Recess.  The word is capitalized but there is no definition of ‘Senate Recess’ leading to a definite ambiguity in the exact meaning of ‘Senate Recess’.  Other provisions require that the POTUS faithfully execute all laws and that the advice and consent of the Senate shall consist of two-thirds of the Senators present for specific actions that do not concern presidential appointments, but in the same sentence aver that presidential appointments must have the advice and consent of the Senate.  All in all, the pertinent Constitutional provisions represent a jumble of confusing possibilities in the matter under discussion and thus, is a perfect application of a case requiring a SCOTUS ruling–the POTUS’ v. someone from the Senate, preferably a Senate officer; this would be, very clearly, a claim involving the United States.   Granted, this case would not have a claim for monetary damages but a claim for the loss of trust in the United States Constitution would be sufficient for SCOTUS  jurisdiction.  On the other hand, the POTUS’ defense would draw on the same premise.

At this stage in the debate–it remains a debate until something definitive is resolved among the branches of government–a lot of things could happen,some good, some bad.  Some possibilities:

  • Congress successfully impeaches one or more officers.  Those impeached are removed, those not impeached remain in office.
  • No impeachments, Congress defines ‘Senate Recess’.  Officers remain in office while law dictates circumstances under which a legal recess appointment can occur in the future.
  • No impeachments, no case before SCOTUS, no Congressional definition of ‘Senate Recess’.  Situation is just as befuddled as before.
  • No impeachments, case before SCOTUS.  Ruling would not effect appointee’s status unless POTUS cows to SCOTUS.  The least possibility would be for SCOTUS not to rule, thus agreeing that the POTUS has acted Constitutionally.
  • No impeachments, case before SCOTUS but ruling includes definition or partial definition of ‘Senate Recess’.  Like above but ruling stands as de facto law until Congress acts.

No matter what happens, the appointees remain in office unless fired by the POTUS (not necessarily the appointer) or successfully impeached.

As noted in the last post, there is no guarantee that members of the U.S. Government will act Constitutionally because power begets ego and those egotistical persons involved in the decision making process will ignore parliamentary law and substitute their own beliefs for the content of the U.S. Constitution.

For what its worth, I would argue for the recess appointment being Constitutional; the appointments were necessary and the Senate was in a de facto state of recess, but strong arguments could be raised to the contrary.


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