# 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:** 16\ **Page:** 13
**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, 6:09pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/241 "2012-01-14T18:09:45Z")
> [@magellan01](#): > > Excellent point. Well, I misspelled “you’re” :smack:, and I wasn’t the first poster to point out the logical error in tht thinking. ---
**Author:** ![SCSimmons](https://avatars.discourse-cdn.com/v4/letter/s/e495f1/32.png) [@SCSimmons](https://boards.straightdope.com/u/SCSimmons)\ **Post date:** [January 14, 2012, 6:39pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/242 "2012-01-14T18:39:15Z")
> [@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. Well, there’s never been a hard definition–the branches have always worked together to avoid absurd situations like lunchtime appointments. The default has generally been ten days, I believe, which seems reasonable. The kerfuffle here is that the President has decided that _pro forma_ sessions do not reset that ten-day clock; since the Congress has scheduled a circa month-long holiday break, that’s a recess whether they want to call it one or not. Which really doesn’t seem to be an unreasonable position. ---
**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, 7:31pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/243 "2012-01-14T19:31:32Z")
> [@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. That is not a valid analogy. I am not arguing that the president has to be able to create the circumstances that authorize the power, merely that he gets to define those circumstances. In the case of armed insurrection, I believe (and I think you would agree) that the president has a great deal of latitude in defining what “armed insurrection” means. Certainly the population cannot rise up in rebellion and then claim that it isn’t an insurrection so the president can’t use his authority. Similarly, I believe he has a great deal of latitude in defining “recess” in the context of the Recess Appointment clause. The Senate cannot go into recess and then claim that they aren’t merely to thwart executive authority. In both cases if the president defines “insurrection” or “recess” in a way that the public disagrees with then they can (and should) hold it against him in the following election. Additionally, I’m sure the judicial branch can act to limit executive authority in the most extreme cases - appointing officers over lunch or using the military to put down a peaceful protest. I don’t believe that this situation rises to that level in the slightest. ---
**Author:** ![John\_DiFool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_difool/32/19543_2.png) [@John\_DiFool](https://boards.straightdope.com/u/John_DiFool)\ **Post date:** [January 14, 2012, 8:25pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/244 "2012-01-14T20:25:18Z")
> [@Jas09](#): > > 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. Strange women in ponds distributing swords is no basis for a system of government! Couldn’t have said it better myself-they basically have given Obama no choice with their constant obstructionist tactics. Anyone have any numbers on the amount of backlogged judicial appointments? ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [January 14, 2012, 8:27pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/245 "2012-01-14T20:27:05Z")
> [@John\_Mace](#): > > Well, I misspelled “you’re” :smack:, and I wasn’t the first poster to point out the logical error in tht thinking. You are, IIRC, the first person to point it out without pointing out other caveats in the same post, which is enough of “on magellan’s side” that he can safely praise it. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [January 14, 2012, 9:44pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/246 "2012-01-14T21:44:32Z")
> [@elucidator](#): > > Well, “usurper” is a bit grandiose, don’t you think? He’s simply using a legal technicality in the same way lawyers do on a daily basis. Its not like he sent squads of US Marshals to clap the Republicans in irons. Which would be wrong. As well as illegal. Entertaining, though. ---
**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, 9:55pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/247 "2012-01-14T21:55:01Z")
> [@Jas09](#): > > That is not a valid analogy. I am not arguing that the president has to be able to create the circumstances that authorize the power, merely that he gets to define those circumstances. There is no reason to think that, given that Congress itself has procedures to go into recess and when the clear intent of Congress is for the Senate not to be in recess. > [@](#): > > In the case of armed insurrection, I believe (and I think you would agree) that the president has a great deal of latitude in defining what “armed insurrection” means. No, I wouldn’t agree that he has “a great deal of latitude” in that case. ---
**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 15, 2012, 3:23am UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/248 "2012-01-15T03:23:44Z")
> [@elucidator](#): > > 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. No. the Senate can neither confirm nor deny a recess appointment The appointment serves until the end of the next term at which point the nomination process starts over. ---
**Author:** ![SCSimmons](https://avatars.discourse-cdn.com/v4/letter/s/e495f1/32.png) [@SCSimmons](https://boards.straightdope.com/u/SCSimmons)\ **Post date:** [January 15, 2012, 7:14pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/249 "2012-01-15T19:14:01Z")
> [@Saint\_Cad](#): > > No. the Senate can neither confirm nor deny a recess appointment > The appointment serves until the end of the next term at which point the nomination process starts over. Well … there is one option. Since they claim not to have recessed, they could conceivably come back to Washington early and vote on the already-submitted appointment request, since the filibuster technically just tabled that matter for future reconsideration. If they were to then fail to confirm the appointment, that conflict would almost certainly have to head straight to the Supreme Court for adjudication, wouldn’t it? If Congress really hasn’t recessed and that item of business is still open, they’d be entitled to vote on it. Won’t happen, of course. (a) They’d have to come back early–their scheduled return date is the already-established start date for the new session, and the only business for the old session they can do that day is officially gavel it closed, I think. (b) They don’t have the votes to vote down the appointment–if they did, they wouldn’t have filibustered it in the first place. (c) If the Dems thought they did have the votes (eg. because of some defectors upset about the perceived theft of congressional authority), then _they_ could filibuster the appointment vote, unless there were enough defectors to support a cloture vote, which would be about a third of the Democratic Senate delegation. Come to think of it, I kind of hope it comes to that. That would be hilarious. 😃 ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [January 15, 2012, 9:07pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/250 "2012-01-15T21:07:53Z")
Sen. McConnell: I rise to condemn the motion under the strongest possible terms, our great nation… Sen. Reid: I rise to remind the distinguished gentleman that he is in favor of the motion. Sen. McConnell: You sure, Harry? Sen. Reid: You are in favor of the motion to disregard the _pro forma_ nature of the appointment, in favor of the motion to demand a vote of approval or disapproval, and on record as refusing to allow such a motion to come to a vote. Sen. McConnell: Thanks, Harry Sen Reid: No problem, sugarpants. Sen. McConnell: Not in public, Harry… ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [January 16, 2012, 10:06pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/251 "2012-01-16T22:06:31Z")
> [@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. Yes…I guess they could. Let’s be honest here…there is almost no need for the President to have the ability to recess appoint. Congress is almost always in session and, if they are not, they will be in a few weeks. The purpose of the recess appointment was to allow appointments when Congress was not in session for the majority of the year. These days, with a full time congress, the recess appointment seems to only serve as a way for a President to get around Congress. Congress counters by never going on recess. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [January 16, 2012, 10:25pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/252 "2012-01-16T22:25:22Z")
I guess I favor a stronger executive than **yorick** and **John** then. It seems completely backwards to me that the Senate could define away a presidential prerogative. To me the recess appointment clause is vitally important for the executive to be able to enforce the laws by appointing ministers when Congress is not available to provide advice and consent (which they clearly are not at the present time). But then again, I think that the notion of filibustering executive appointments in the first place is ludicrous, so I’m glad that there is at least one tool given to POTUS to check this behavior. Doubly-so when the obstruction isn’t based on the merits of the nominee but 100% to prohibit enforcement of the law (as is the case in both the CPA and NLRB appointments). Obviously we won’t agree on these points as I think all of the details and positions have been well laid out on both sides. We’ll just have to see what SCOTUS thinks - my bet is that they won’t interfere in what is best left a political matter. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 16, 2012, 10:49pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/253 "2012-01-16T22:49:18Z")
> [@yorick73](#): > > Yes…I guess they could. Let’s be honest here…there is almost no need for the President to have the ability to recess appoint. Congress is almost always in session and, if they are not, they will be in a few weeks. The purpose of the recess appointment was to allow appointments when Congress was not in session for the majority of the year. These days, with a full time congress, the recess appointment seems to only serve as a way for a President to get around Congress. Congress counters by never going on recess. Sure, but as people of your political persuasion are apt to say, “amend the Constitution then.” ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [January 16, 2012, 10:54pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/254 "2012-01-16T22:54:23Z")
> [@Jas09](#): > > I guess I favor a stronger executive than **yorick** and **John** then. It seems completely backwards to me that the Senate could define away a presidential prerogative. To me the recess appointment clause is vitally important for the executive to be able to enforce the laws by appointing ministers when Congress is not available to provide advice and consent (which they clearly are not at the present time). Let’s not pretend that recess appointments are used as some emergency procedure to appoint people when congress is not available to provide advice and consent. Congress deliberately blocks certain nominees. It seems to me that waiting for a recess to make an appointment defines away Congress’ duty to advise and consent. It works both ways. ---
**Author:** ![Jack\_Batty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jack_batty/32/3201_2.png) [@Jack\_Batty](https://boards.straightdope.com/u/Jack_Batty)\ **Post date:** [January 16, 2012, 11:09pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/255 "2012-01-16T23:09:51Z")
I’m for getting rid of recess appointments if we can also get rid off the ridiculous filibuster rules. Just saying you’re going to filibuster shouldn’t be enough. If you want to block a vote, break out your phone book and start fucking reading, Mr Smith. ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [January 17, 2012, 1:50am UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/256 "2012-01-17T01:50:06Z")
> [@yorick73](#): > > Let’s not pretend that recess appointments are used as some emergency procedure to appoint people when congress is not available to provide advice and consent. Congress deliberately blocks certain nominees. It seems to me that waiting for a recess to make an appointment defines away Congress’ duty to advise and consent. It works both ways. Eh, I draw a very large distinction between “that appointee is unacceptable, choose another” and “we’re going to block ALL appointees in an effort to stop enforcement of a legally passed and entered-on-the-books law”. I’ll be fine with stopping recess appointments when the latter position becomes liable for an obstruction of justice charge. [Previous page](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510.md?page=12)