The Recess Appointments Decision Part III: How Protective Are Pro Forma Sessions Against Improper Recess Appointments

While people who favor the original meaning of the Recess Appointments Clause were disappointed by the majority decision in Noel Canning, some people argue that at least the Court’s holding as to pro forma sessions puts a significant check on executive power. According to this view, the Senate can simply hold pro forma sessions every 3 days to prevent the President from making a recess appointment. That would prevent recess appointments, because the Supreme Court held that a recess of more than 3 days and presumptively more than 10 days is required to make a recess appointment.

Moreover, these people argue that even if the party opposing the President only controls the House and not control the Senate, it can still block recess appointments. Since neither house can adjourn for more than 3 days without the consent of the other house, the House of Representatives can force the Senate to meet every 3 days (by the House refusing to adjourn for more than 3 days). The party opposing the President can therefore prevent recess appointments so long as it controls one house. Thus, even if the Supreme Court’s holding regarding pro forma sessions conflicted with the original meaning, it at least constrains the Presidents otherwise excessive recess appointment power.

While there is something to be said for this view, it is by no means clear that the pro forma sessions will work to constrain the President. There are two issues here: how many houses the party opposing the President needs to control and whether a single Senator from the President’s party can defeat the pro forma session procedure.

1. How many houses does the party opposing the President need to control? While the Republican House was able to force the Democratic Senate to hold pro forma sessions in 2012, it is not clear that will work in the future. Instead, the party opposing the President might have to control both houses to stop the recess appointments.

The Constitution provides that “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days.” Thus, it would seem that each house can prevent the other from adjourning for more than 3 days and therefore from allowing the President to make a recess appointment. But there is another provision that states that “in Case of Disagreement between [the houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper.”

Under this provision if one house attempts to hold pro forma sessions every three days (as was done in the Noel Canning case) and the other wants to hold a two week recess (to allow the President to make a recess appointment), the President would have the authority to determine that the houses should take a 2 week recess and thereby allow himself to make recess appointments. That would suggest that the party opposing the President would need to control both the House and the Senate to stop recess appointments.

But perhaps the party opposing the President could take another action. It could hold a pro forma session every day. In that event, one might conclude there was no adjournment at all and therefore no “disagreement between [the houses] with respect to the Time of Adjournment.”

2. But even in this situation, a single Senator from the President’s party might be able to prevent the pro forma session from operating. If the two Senators meet for the pro forma session, a third sabotaging Senator could show up and assert there was no quorum. If he did, that would appear to require a quorum determination and a conclusion that there was no quorum. In that event, the pro forma session would presumably not count as a real session and therefore would not have ended the recess.

Perhaps there are some Senate rules that would prevent this from occurring in the way I suggest, but I would question their constitutionality. If those rules prevented the Senate from determining whether there was a quorum, even after a Senator raised the issue, it is hard to see how they would be constitutional, even under the Supreme Court’s decision.

Of course, taking this action might not be costless to the Senator who did it and to his party. If the Senator’s action showed that there was no quorum, then that might require the entire Senate or a majority of it to meet (unless there was agreement between the two houses as to the length of the recess). But this action is nonetheless a way that the President and his party can combat the use of pro forma sessions.

In conclusion, if the pro forma sessions are used to combat recess appointments, there will be ways of responding to those sessions. And that might once again leave the President with broad recess appointment authority, notwithstanding opposition in one or both of the houses to his actions.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. gabe says

    This is the sort of nonsense we will find ourselves in IF the court is allowed to continue to “interpret” the constitution into meaninglessness. It seems to me that if the President has the authority to “order” the Legislature into recess then the Legislature is powerless to prevent such recess appointments if the current Black Robe wisdom is to prevail. It also seems unlikely that the Framers would have intended that the grant of authority to the Executive to “order” a recess upon a disagreement would actually indicate that they had “intersession” recesses in mind when drafting the provision – if not, then why even seek to limit the Presidents authority under the Appointments clause at all.

  2. gabe says

    Epstein makes the point in discussing the decision in McCullen v Coakely that:
    “It is tragi-comic that all nine Supreme Court justices have signed on to a set of ad hoc rules that can only make matters worse. One constant misconception in modern constitutional law is that ceaseless balancing somehow serves the interests of justice better than clear rules.”

    The same holds true here. Just who is the Court to perform all these balancing acts. Personally, I prefer the Great Wallendas – at least they put their butts on the line – The Supremes never do seem to fall, do they?

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