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How to Resolve the Recess Appointment Crisis: An Elegant Legal Solution—A Commentary by Akhil Reed Amar ’84 and Timothy Noah

The following commentary was published in The New Republic on January 6, 2012.

How to Resolve the Recess Appointment Crisis: An Elegant Legal Solution
By Akhil Reed Amar ’84 and Timothy Noah

On Jan. 4 President Obama made several recess appointments, in effect making an independent judgment that the Senate is in recess. Senate Republicans howled in indignation that the Senate is not in recess; they’d pressured the Democratic majority to keep the Senate technically in session in order to prevent the president from appointing Richard Cordray (or anyone) director of the Consumer Financial Protection Bureau. (Cordray was one of the people Obama appointed yesterday.) One of us (Timothy Noah) wrote yesterday that Obama had unaccountably failed to take advantage of a brief window on Jan. 3 when the Senate unambiguously was in recess, but Noah was wrong. No such window appeared. (TNR’s Jon Cohn just explained why.)

So the country is left with a Hobson’s choice: Allow the president to decide when the Senate is in recess, which would appear to be unconstitutional, or allow the Senate to deny the president the ability to make recess appointments…which would also appear to be unconstitutional (or, if not strictly unconstitutional, surely unreasonable and unprecedented). It’s possible, however, to find a way out of this mess: Here’s how.

In the past, the question of what’s a Senate recess and what isn’t has been worked out through agreements between the executive branch (typically the attorney general’s office) and the Senate. If the constitutional problem with Obama’s appointments is that they depart from this tradition, why not get the Senate—which, after all, has a Democratic majority—to sign on?

Senate majority leader Harry Reid has said he supports Cordray’s appointment, which implicitly means that he thinks the president is acting within his constitutional powers. Given the Senate’s elaborate system of parliamentary checks on the power of the majority—most significantly, the much-abused filibuster—it’s unlikely Reid could pass a resolution formally stating the Senate’s agreement that it is in recess, or the practical equivalent. But the Senate doesn’t need to act in any official capacity. A letter would suffice, signed by 51 senators stating that the president is entitled to make a recess appointment when the Senate actively denies him that constitutional power through procedural gimmicks—defined however they like, or not defined at all, if they prefer.

It might be argued that Senate minority leader Mitch McConnell would immediately launch a judicial challenge to such a handshake deal between the Senate majority and the president. But in Byrd vs. Raines the Supreme Court ruled in 1997 that no member of the Senate minority has standing in federal court in such matters; in situations like this, the Senate must bring suit as a whole or not at all. It’s true that, say, a nonbank bank regulated by the CFPB might bring suit, alleging that some action against it is not legal because the CFPB does not have a lawfully-appointed director. But would such a nonbank have any genuine right of its own to complain about—apart from the (possible) violation of the rights of the Senate? If not, it’s not entirely clear that any entity other than the Senate as a whole would or should be allowed to go to court..

A private letter of the sort we are proposing would have several advantages and implications. First, it would serve to limit the precedent of presidential adventurism in the Cordray affair, by making clear that the President in this case was not really defying or circumventing the Senate, but actually facilitating the preferences of the Senate majority itself. Second, it would be an opportunity for Senators to accept responsibility by actually doing something rather than ducking responsibility by doing nothing at all—which the Senate of late has turned into an art form.

Third, it would be a measured move in the direction of filibuster reform—not across the board, not even in all cases involving appointments, but just in situations involving recess appointments. When Republicans controlled the Senate they loudly threatened to use “the nuclear” option—to destroy certain filibusters by a parliamentary maneouver that required only a simple majority vote of the Senate as a whole. Here, Senate Democrats would be doing the same thing, but on a smaller scale (involving only recess appointments). Such a move might be less likely, marginally, to enrage the other side. Call it a tactical nuke.

So get to it, Sen. Reid. Fifty-one signatures is all you need.

Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University. Timothy Noah is a senior editor at The New Republic.