Surveillance

By Jay Wexler, a law professor at Boston University School of Law.

When I first sat down to write The Odd Clauses — my new book about ten of the Constitution’s lesser known but still-pretty-important provisions — probably the hardest question I faced was which clauses to include. This, in turn, forced me to confront the question of what makes an odd clause odd? Are the oddest clauses those that nobody has ever heard of? Those that are historically anachronistic? Those that seem to deal with topics — post roads, perhaps? — that seem somehow beneath the dignity of a constitution?

In the end, after many late-night boozy breathless conversations about the meaning of constitutional oddness (not really), I decided that, for me, what makes a clause odd is its specificity. The clauses that I find oddly compelling are those — like the Incompatibility Clause, which prohibits members of Congress from simultaneously holding executive office, or the Letters of Marque Clause, which gives Congress the power to authorize private ships to fight pirates on the government’s behalf  —that perform or illustrate key constitutional functions or values (separation of powers, for instance, or allocating power over foreign affairs) in very specific, and therefore (to me, anyway), quirky and odd ways.

Under this definition, the Recess Appointments Clause of Article II, Section 2 (“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 their next Session.”) qualifies as odd, and I therefore included it as the subject of Chapter Three of my book (illustrating presidential powers). But at the same time, I realized that in many other ways the clause is not all that odd — people have generally heard about it, and it’s played an important role historically — and so it was no surprise that of all the clauses I discuss in the book, the Recess Appointments Clause is the first to make front page news. (By contrast, the notion that Senator Scott Brown might be violating the Incompatibility Clause by remaining in the National Guard has made front page news only in my own head.)

For the past month or so, speculation ran rampant as to whether President Obama would use his recess appointment power to appoint Richard Cordray as the first head of the newly created Consumer Financial Protection Bureau. Republicans refused to confirm Cordray unless major changes to the law creating the new agency that are unappealing to the President were implemented, and so a recess appointment had been the President’s only option. To stop the President from taking this step, Republican senators decided to hold pro-forma sessions every three days since leaving for the holidays (Democrats, incidentally, did a similar thing at the end of the Bush Administration), relying on past governmental pronouncements that in order to qualify as a “recess,” the Senate must be on break for at least three days. 

Originally, some speculated that President Obama might appoint Cordray during the imaginary moment on January 3 when the previous session of Congress ended and the new one began, following the example of Teddy Roosevelt, who pulled such a maneuver (to much criticism) back in 1903. Instead, Obama waited until January 4, when he exercised his more typical recess appointment power to install Cordray as the head of the new agency without Senate approval, on the theory that the Republicans’ pro-forma sessions do not render what otherwise would be a recess a recess, for purposes of the Constitution.

Republicans are, of course, up in arms, threatening to challenge the President’s exercise of power in court. It is likely that a court — maybe even the Supreme Court — will one day weigh in on whether the President exceeded his power under the Recess Appointments Clause. Do pro-forma meetings count as real Senate sessions?