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Reminder: Obama Can Force Recess, Make Appointments Whenever He Wants

Michael Tomasky discovers something that we’ve discussed here over the past couple months: Presidents have the power to adjourn Congress, which means there’s nothing stopping the President from making a recess appointment.

What? Force the Congress into recess? Yes. The president has the power under the Constitution to do exactly that. Read Article II, which is, of course, on the executive branch, Section 3, titled “State of the Union, Convening Congress.” It states in full about the president that:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

“[H]e may adjourn them to such Time as he shall think proper.” Of course, there are caveats. First, it must be an extraordinary occasion. Second, the two houses of Congress must disagree about the time of adjournment. Both can be finessed. On the first point, Obama can actually reasonably argue that the number of presidential appointments held up by Republicans (we’ll get to the numbers in a minute) is so large as to constitute an extraordinary circumstance. On the second, all that would take is for the Democratic-controlled Senate to force a “disagreement” with the House about when Congress should adjourn.

This would solve the problem of having vacancies at the Consumer Financial Protection Bureau, the Commerce Department, the Federal Reserve Board and hundreds of other positions. I would argue that in the near term, the Fed appointments may be the most important, since fiscal policy is a dead letter and a couple extra activist monetarists would be the best hope for any kind of expansionary, growth-producing policies between now and the next election. But obviously, having Richard Cordray at CFPB would help as well. And the President would actually have to nominate people to those two open Fed positions for this to work.

Right now the Senate has been blithely agreeing to pro forma sessions that eliminate the ability for a recess appointment. But even this is dubious. There is a precedent not to recess appoint if the recess doesn’t last more than three days, but the President could simply aver that the pro forma sessions don’t constitute having Congress in session in his view, and that he will take advantage of the recess to end the deadlock and use his appointment power.

This is all in the realm of fantasy, of course, but in the event that a President who doesn’t want to be boxed in by Republicans comes around, it’s useful to know the extent of his or her powers.

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David Dayen

David Dayen