01/10/2012 03:19 pm ET Updated Mar 11, 2012

Constitution Check: Can the Senate Block the President's Appointment Powers?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: the Senate's refusal to take a formal recess, designed to block presidential appointments while out of town.

The statements at issue:

"Never before has a president purported to make a 'recess' appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order."

-Former U.S. Attorney General Edwin Meese III and former Justice Department lawyer Todd Gaziano, in an op-ed column, "Obama's recess appointments are unconstitutional," published in the Washington Post on January 6, discussing the president's appointments of the director of the new Consumer Financial Protection Bureau and of three members of the National Labor Relations Board.

"The president's counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks. The Constitution guarantees the president the right... to make appointments during Senate recesses, and the President will use that authority to make this appointment."

White House Press Secretary Jay Carney in a discussion with reporters on January 4 of the president's appointment of Richard Cordray to head the new consumer agency.

We checked the Constitution, and...

The dispute between the former government legal officials and the president's spokesman -- a dispute that has now widened well beyond those combatants -- is one of those constitutional controversies that remain truly unsettled even 225 years after the founding document was written. An answer might be forthcoming as the Congress reassembles this month in Washington, or it might emerge in a later court case. For now, both sides can claim to be right, if for no other reason than the fact that the question is, indeed, unresolved.

Two provisions of the Constitution will bear on an answer. Article II, spelling out the powers of the presidency, says 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 the next session." Article I, defining the powers of Congress, says that "neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days."

One thing is clear, and it may be the only thing that is clear in this controversy: if a recess appointment is valid, the named official goes to work without having had to be confirmed by the Senate. The Senate, therefore, has always been very protective of its power and, at least in the past five years, has several times taken steps to try to block any such appointments.

The favored tactic, first employed by the Democrats in 2007, is to refuse to go into formal recess, and then hold very brief ("pro forma") sessions in which no business is done but supposedly interrupting the informal recess. It worked at that time: between November 2007 and January 2009, President George W. Bush made no recess appointments.

It was bound to be used by the Republicans when they had the opportunity, and they did so near the end of the congressional session in 2010. In return for allowing some presidential nominations to go through, the GOP insisted that there be no recess longer than three days. During the Senate's absence, some of the pro forma sittings were less than 30 seconds.

The partisan battle grew more intense, though, last May. Twenty Republican Senators wrote to House Speaker John Boehner asking him to not allow the House to agree to any recess longer than three days for the duration of President Obama's term. In June, many of Boehner's GOP colleagues in the House urged the same thing. Since then, the Senate has been obliged to come in for pro forma meetings. The chamber is gaveled to order by a Senator, and usually returns to recess within seconds.

The pro forma tactic has worked because modern presidents have followed the view that the recess appointment power exists only if the Senate itself concludes it is in recess for more than three days. (This idea is traced to a Justice Department legal brief in a court case in 1993, but that brief said it was a "close question" whether such power would exist during a recess of less than three days.)

It is clear that President Obama, on the advice of White House lawyers, has decided that these are not real meetings of the Senate, and that the tactic threatens to nullify the Constitution's grant of power to the president to fill vacancies to keep government agencies running. (They appear to be guided partly by one precedent: in 1903, while the Senate was in recess for only a few hours, President Theodore Roosevelt made 160 appointments, mostly of military officers.)

Republicans in the Senate and the House have reacted with furor to the new Obama appointments, and are vowing to take action. Business and conservative advocacy groups are already promising lawsuits, once the consumer bureau with its new director, or the NLRB, with its new members, takes a formal action that can be the foundation for a lawsuit.

This post first appeared on Constitution Daily, the blog of the National Constitution Center in Philadelphia.