# Recess appointment of Consumer Agency head **URL:** \ **Category:** Great Debates\ **Created:** [January 5, 2012, 2:54pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510 "2012-01-05T14:54:13Z")\ **Posts on this page:** 20\ **Page:** 12
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [January 11, 2012, 8:46pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/221 "2012-01-11T20:46:28Z")
> [@Ca3799](#): > > If they were not in recess, why did Reid and Boehenr ask Obama to call back later when he asked about a debt ceiling increase . Also I see this item today: > > Rep. Diane Black (Tenn.) and 71 other House Republicans introduced a nonbinding resolution today voicing concern over President Barack Obama’s recess appointment of four administration nominees last week. > > “It’s astounding to me that the president is claiming these are recess appointments and within his authority, when Congress was not in fact in recess,” Black said. “These appointments are an affront to the Constitution. No matter how you look at this, it doesn’t pass the smell test. I hope the House considers my resolution as soon as we return to Washington so we can send a message to President Obama.” > > Really? Basically, “We’re not in recess, and I hope we can take care of this when we return.” Return from _what_? ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [January 11, 2012, 8:58pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/222 "2012-01-11T20:58:58Z")
That quote is pretty damn hilarious, IMO. Talk about “passing the smell test”. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [January 11, 2012, 11:55pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/223 "2012-01-11T23:55:58Z")
> [@RitterSport](#): > > Wait, are you expanding the definition of a word? Or, do I have you confused with another poster? Perhaps this new definition can be the marriage of other definitions. What? Are you playing games? Show me where and how I’ve expanded the use of the term from those offered in the dictionary. ---
**Author:** ![Ca3799](https://avatars.discourse-cdn.com/v4/letter/c/9f8e36/32.png) [@Ca3799](https://boards.straightdope.com/u/Ca3799)\ **Post date:** [January 12, 2012, 12:15am UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/224 "2012-01-12T00:15:48Z")
I have been wondering why Boehner hasn’t been all over the news complaining about the recess appointments. I’ve seen surrogates such as Senator Cornyn and a miscellany of smaller fry politicians, but not Boehner (or Cantor, for that matter). Either those guys are on vacation or it was their screw up. I bet we will see Boehner on his way out soon. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [January 12, 2012, 1:30am UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/225 "2012-01-12T01:30:11Z")
The writers of the Constitution recognized that sometimes, the Senate would not be able to confirm any appointments, but that the business of government must meanwhile continue. And so they gave the President the power of recess appointments. The Senate is currently not able to confirm any appointments, and so the President is using the power the Constitution granted to him for just such an occasion. It’s no fault of Obama’s that the reason they’re currently unable to confirm appointments is that a party of obstructionist idiots is wholeheartedly preventing it. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [January 12, 2012, 3:39am UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/226 "2012-01-12T03:39:38Z")
Am I correct in assuming that if the Senate asserts its confirmation rights over a recess appointment, it has every right to do so, but the filibuster option becomes more or less moot? ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [January 12, 2012, 3:47am UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/227 "2012-01-12T03:47:48Z")
> [@Ca3799](#): > > I have been wondering why Boehner hasn’t been all over the news complaining about the recess appointments Because he’s not an idiot and realizes that complaining that Obama went over his head to appoint a commissioner to protect consumer interests against Wall Street is not particularly good politics when Wall Street is perhaps the only institution more hated than your own? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 12, 2012, 3:21pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/228 "2012-01-12T15:21:46Z")
> [@Czarcasm](#): > > Basically, “We’re not in recess, and I hope we can take care of this when we return.” > Return from _what_? Exactly. “I’m shocked, shocked to discover there’s gambling going on here!” How ludicrous, and how much more perfectly clear that the extant sessions are sham. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 12, 2012, 3:23pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/229 "2012-01-12T15:23:35Z")
> [@jtgain](#): > > So how much “business” is enough? What if a Senator opens the session, declares with unanimous consent that the sense of the Senate is that November is national SDMB month, immediately repeals the resolution, and then adjourns. Enough? You’re looking to draw a bright line, and there is no way to do that; the answer is that the totality of the circumstances would determine whether a session is genuine or a sham. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 12, 2012, 3:44pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/230 "2012-01-12T15:44:26Z")
> [@elucidator](#): > > Am I correct in assuming that if the Senate asserts its confirmation rights over a recess appointment, it has every right to do so, but the filibuster option becomes more or less moot? The recess appointment is good through the end of the NEXT session so the nominee may have up to 2 years before they are confirmed/denied. That makes a lot of issues moot. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [January 13, 2012, 3:51am UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/231 "2012-01-13T03:51:34Z")
I thought this story was relevant: [Justice Dept says recent recess appointments legal > [@](#): > > Assistant Attorney General Virginia Seitz wrote that the president has authority to make such appointments because the Senate is on a 20-day recess, even though it has held periodic pro forma sessions in which no business is conducted. Seitz argued the pro forma sessions - some with as few as one member present - have not been sufficient for the chamber to exercise its constitutional authority to advise and consent to normal presidential nominations. ]([http://hosted.ap.org/dynamic/stories/U/US\_JUSTICE\_RECESS\_APPOINTMENTS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2012-01-12-21-31-55](http://hosted.ap.org/dynamic/stories/U/US_JUSTICE_RECESS_APPOINTMENTS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2012-01-12-21-31-55)) I know that’s pretty much what people have been saying here, but the Justice Dept. has people who’s job it is to think about this and advise the president. I looked for an online version of the document, but so far all I’ve found are news stories and blogs about it. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [January 13, 2012, 4:17am UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/232 "2012-01-13T04:17:52Z")
I found it, courtesy of the New York Times. [LAWFULNESS OF RECESS APPOINTMENTS DURING A RECESS OF THE SENATE NOTWITHSTANDING PERIODIC PRO FORMA SESSIONS](http://www.nytimes.com/interactive/2012/01/13/us/politics/13power-text.html) ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [January 13, 2012, 5:38am UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/233 "2012-01-13T05:38:09Z")
> [@Saint\_Cad](#): > > The recess appointment is good through the end of the NEXT session so the nominee may have up to 2 years before they are confirmed/denied. That makes a lot of issues moot. No doubt, but not quite what I’m asking about. The nomination was not confirmed because the Pubbies refused to allow it to go forward, using the filibuster threat. So, he is serving on a provisional basis, yes? The Senate can still insist upon its power of approval. Presumably, the Dems will have no good reason to do so, so if anybody is going to demand it, it would have to be Republicans. So, it occurs to me that the Pubbies are in rather a cleft stick. In chess terms, they’re forked. If they insist on voting upon the nomination, they can hardly threaten to filibuster approval. And if its a majority vote, they most likely lose. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [January 14, 2012, 5:07pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/234 "2012-01-14T17:07:21Z")
> [@Jas09](#): > > The power to recess appoint is given to the President and he can define what “recess” means, within the bounds of reason. I don’t understand this point. The power to recess appoint does not mean the power to define recess…at least in my mind. “Within the bounds of reason” also seems very slippery and ill-defined. Could the president recess appoint when the senate is at lunch? I realize this scenario is absurd but I am pointing out that a hard definition is necessary. I assume that the power to define “recess” belongs to the legislative branch. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 14, 2012, 5:21pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/235 "2012-01-14T17:21:58Z")
> [@yorick73](#): > > I don’t understand this point. The power to recess appoint does not mean the power to define recess…at least in my mind. “Within the bounds of reason” also seems very slippery and ill-defined. Could the president recess appoint when the senate is at lunch? No. He would have to wait until after lunch, when they are playing during recess. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [January 14, 2012, 5:28pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/236 "2012-01-14T17:28:00Z")
Nap time is, of course, _right_ out! ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [January 14, 2012, 5:28pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/237 "2012-01-14T17:28:46Z")
> [@yorick73](#): > > I don’t understand this point. The power to recess appoint does not mean the power to define recess…at least in my mind. “Within the bounds of reason” also seems very slippery and ill-defined. Could the president recess appoint when the senate is at lunch? I realize this scenario is absurd but I am pointing out that a hard definition is necessary. I assume that the power to define “recess” belongs to the legislative branch. So, in your opinion, the Senate could declare that they are never in recess (even without pro-forma sessions) and nullify completely the Recess Appointment Clause? This seems untenable, which is the primary reason I come to the position I do. As to your counter-example (POTUS recess-appointing over lunch), I would argue that he could potentially do that, and if he did the remedy is political not judicial. This doesn’t violate the Senate’s advise and consent power, as they could always consider and vote on the nominee before it got to that point. The fact that they refuse to hold a vote is them declining to use their power, not POTUS usurping it. That said, recess appointing during a time when the Senate is actually available to provide “advice and consent” is materially different from appointing during a period when they are not. To me, POTUS leads the executive and this includes appointing ministers, justices, etc. If POTUS nominates or appoints inadequate or improper ministers then he will be punished by the voters. I felt this way under Bush as well, before the “tu qoque’s” start flying in. Filibustering executive appointments is, to me, a violation of the original intent of “advise and consent”. It’s within the Senate’s right to do so, but I find it hard to take their complaints seriously when POTUS uses the recess appointment power. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [January 14, 2012, 5:35pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/238 "2012-01-14T17:35:28Z")
> [@Jas09](#): > > As to your counter-example (POTUS recess-appointing over lunch), I would argue that he could potentially do that, and if he did the remedy is political not judicial. This doesn’t violate the Senate’s advise and consent power, as they could always consider and vote on the nominee before it got to that point. The fact that they refuse to hold a vote is them declining to use their power, not POTUS usurping it. That said, recess appointing during a time when the Senate is actually available to provide “advice and consent” is materially different from appointing during a period when they are not. But if couldn’t do it over lunch, how about at 3:AM when they’re all sound asleep? Or how about over the course of a weekend? The point is that there needs to be some agreement on what constitutes them being in recess. Right? And they had that agreement: three days. Obama AGREED to that timeframe, and then went and just ignored it. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 14, 2012, 5:39pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/239 "2012-01-14T17:39:07Z")
> [@Jas09](#): > > So, in your opinion, the Senate could declare that they are never in recess (even without pro-forma sessions) and nullify completely the Recess Appointment Clause? This seems untenable, which is the primary reason I come to the position I do. Again, your stuck on the idea that the President must be able to use this authority sometime, since it’s given to him explicitly in the Constitution. But the Constitution does not require the Senate to recess anymore than it requires the populace to take up armed insurrection so that the President can exercise his authority to suspend _habeas corpus_ during such times. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [January 14, 2012, 6:00pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/240 "2012-01-14T18:00:53Z")
> [@John\_Mace](#): > > Again, your stuck on the idea that the President must be able to use this authority sometime, since it’s given to him explicitly in the Constitution. But the Constitution does not require the Senate to recess anymore than it requires the populace to take up armed insurrection so that the President can exercise his authority to suspend _habeas corpus_ during such times. Excellent point. [Previous page](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510.md?page=11) [Next page](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510.md?page=13)