NBC News Chuck Todd, Luke Russert and Pete Williams discuss the legal ramifications of President Obama's recess appointment of Richard Cordray as the director of the newly formed Consumer Financial Protection Bureau.
WASHINGTON – Sen. Jim Webb (D-Va.) took the seat of the presiding officer of the United States Senate and gave the gavel a sharp rap on Friday.
"Under the previous order, the Senate stands adjourned until 11 a.m. on Tuesday, January 10, 2012," Webb said, the only words he spoke.
Thirty-one seconds after calling the body to order, Friday's business, consisting entirely of adjourning for the next three days, was over.
Is that enough to prevent a president from using the constitutional power to make appointments when the Senate is away?
President Barack Obama has concluded that the answer is no. He used his recess appointment power this week to name Richard Cordray director of the newly formed Consumer Financial Protection Bureau.
Republicans immediately said he went too far.
"It's clear the president would rather trample our system of separation of powers than work with Republicans to move the country forward," said House Speaker John Boehner. "I expect the courts will find the appointment to be illegitimate."
Article II of the Constitution, setting out the president's duties and authorities, includes "the power to fill up all vacancies that may happen during the recess of the Senate."
During the nation's first century, Congress was in session less than half a year. The recess appointment power allowed the president to keep the government functioning by filling important jobs when the Senate was not around to act on nominations.
In modern times, presidents of both parties have used the power to make appointments during much shorter congressional recesses, like during the summer and around holidays. President Bill Clinton made 95 recess appointments to full-time government positions. President George W. Bush used the power 99 times. The number for Obama so far is 32.
But during the George H.W. Bush administration, Democrats came up with the idea of pro forma sessions, in which the body is gaveled to order then immediately adjourned for another few days.
Republicans have continued the practice. The notion is that it prevents the Senate from fully going into recess, thus blocking a president from using the recess appointment authority.
But the Obama administration has concluded that pro forma sessions are a sham and do not actually prevent the Senate from being in recess. For starters, they note that the Senate's own rules for pro forma sessions specify that they will be convened "with no business conducted." Few senators are even in town.
That means, the administration contends, that the Senate is not available to act on a president's nominees, which is the gap the recess appointment power was meant to bridge. And on that point, many legal experts agree.
"Both the Senate and the executive branch traditionally have given the recess appointments clause a practical construction that focuses on the Senate’s ability to provide advice and consent," said John Elwood, a Washington, D.C. lawyer and former Justice Department official.
"Pro forma sessions at which no business is conducted do not interrupt a recess of the Senate within the meaning of the clause, and thus do not interfere with the president’s recess appointment authority," he argued.
But the Supreme Court has never provided guidance on the issue, and legal scholars sharply disagree about the meaning of the recess appointments clause.
"It is for the Senate, and not for the president, to determine whether the Senate is in session," said Prof. Richard Epstein of the University of Chicago Law School.
"For the president to say that the Senate is not in session when the Senate says that it is, introduces a set of constitutional confrontations that we would be far better off doing without," he said.
Question of timing
The meaning of a recess isn't the only issue. The other involves the phrase "vacancies that may happen during the recess."
Some legal experts have concluded that the Constitution gives a president authority to make a recess appointment only for positions that actually become vacant during the recess.
But administrations of both parties have taken a broader view, backed by several court opinions, that a president has a power to fill vacancies that arise during or before a Senate recess.
A legal showdown appears likely over the Cordray appointment, given the strength of Republican outrage over Obama's action.
If it gets to the Supreme Court, the justices could settle a passionate debate over a presidential power used hundreds of times, one which has stirred controversy since the beginning.