The recent controversy surrounding President Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate was holding pro forma sessions illustrates the need to reach a new understanding of the Recess Appointments Clause of the Constitution. For the Recess Appointments Clause to be functional, it must fulfill two essential constitutional purposes: it must act as a fulcrum in the separation of powers, and it must ensure the continued exercise of the executive power. Achieving this functionality depends not only on the formal constructions of the Clause but also on the ways in which powers conferred under the Clause are exercised—-in other words, on the constitutional expectations that the president and the Senate bring to recess appointments practice. The practical constitutional expectations that have governed recess appointments practice have largely prevented the active use of the Clause’s many textually plausible absurdities that would utterly disrupt the Clause’s functionality. In light of the role that constitutional expectations play in the functionality, and therefore constitutionality, of the Clause, the recent pro forma appointments controversy should not be resolved by the courts. Instead, both the pro forma sessions held by the Senate and the pro forma session recess appointments made by the president present a nonjusticiable political question. By declining to decide the constitutionality of these actions, courts will provide the executive and legislative branch the opportunity to ensure agreement as to both the construction of the Recess Appointments Clause and the attendant constitutional expectations that assure its functionality.
Plausible Absurdities and Practical Formalities: The Recess Appointments Clause in Theory and Practice,
Mich. L. Rev.
Available at: http://repository.law.umich.edu/mlr/vol112/iss4/3