So About that Recess Appointments Clause

Article II, §2, cl. 3 of the Constitution (the “Recess Appointments Clause” or “RAC”) provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session.”

The Constitution requires that Congress “assemble” at least once a year. Under the 20th Amendment, Congress assembles on January 3, unless a different day is established by law. This begins a “session” of Congress, which lasts until it adjourns sine die or until the session expires automatically by the commencement of a new session in the next year. Normally Congress holds one session per year; thus, one would typically refer to a bill or report as having occurred in either the First or Second Session of a particular Congress (eg, 110th Congress, 2d Sess.). However, nothing prohibits holding more than one session per year, and on occasion there have been Congresses that have held more than two sessions (indeed, the first Congress held three sessions).

According to the January 3, 2012 Congressional Daily Digest: “The Senate met in pro forma session to convene the second session of the 112th Congress at 12:01:32 p.m., and adjourned at 12:02:13 p.m. until 11 a.m., on Friday, January 6, 2012.” So after “assembling” for nearly a full second [Update: as an observant reader points out, that should be nearly a full minute- 41 seconds in fact], the Senate adjourned for 2 days, 22 hours, 59 minutes, and 57.87 seconds. (Hope you are taking notes- this could be on the exam).

On January 4, President Obama made four appointments pursuant to the Recess Appointments Clause. Three of them were to the National Labor Relations Board (NLRB), and one was the director of the new Consumer Financial Protection Bureau (CFPB).

Depending on whom you ask, these actions were clearly constitutional, clearly unconstitutional, or somewhere in between. Most commentators have focused on the question of whether the Senate was in “recess” at the time the appointments were made. Sometimes this question gets confused with whether the Senate was “adjourned” or “in session,” but these questions are more easily answered. The Senate was certainly adjourned on January 4 (then, again, the Senate is adjourned for at least part of virtually every day). Whether the Senate was “in session” depends on whether one is using this phrase as simply the converse of being adjourned (as it often colloquially used) or whether one is asking if January 4 was “during the Session of Congress” (the phrase used in Article I, section 5, cl. 4). If one means the former, the answer is no; if the latter, the answer is yes because the second session of the 112th Congress convened on January 3.

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Did Senator Paul’s TSA Detention Violate the Arrest Clause?

Senator Rand Paul was “detained” earlier today by the Transportation Security Administration (TSA) after the Senator refused to consent to a full body pat down at the airport in Nashville, Tennessee. Senator Paul was at the airport to catch a flight to Washington, DC.

This raises an interesting question under the Arrest Clause, art. I, § 6, cl. 1, which provides that Senators and Representatives “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their respective Houses, and in going to and returning from the same.“

For these purposes, I believe that the Senate has been in session since January 3 (notwithstanding some debate about its status for purposes of the Recess Appointments Clause) and, in any event, the Senate apparently is holding votes this afternoon (so Senator Paul alternatively would be “going to” the Senate’s session). However, as we have discussed before (see here and here), the exceptions to the privilege against arrest have been construed so broadly as to leave it with no application to ordinary criminal arrest. Since the practice of arresting people in civil cases no longer exists, this leaves the privilege with little practical import.

In this case, however, it does not appear that TSA was purporting to detain Senator Paul for any criminal violation.  Indeed, it is not clear that TSA had any authority to detain him at all (which is perhaps why TSA is denying that he was detained). I don’t think that the Arrest Clause requires TSA to allow Members of Congress to board airplanes without complying with security regulations. But if TSA agents otherwise sought to prevent Senator Paul from leaving the airport or otherwise to detain him, that may be a different matter.

Bolling Memorandum on Breaking Ties in the Virginia Senate

Virginia Lieutenant Governor Bolling has issued this ruling on his power to break deadlocks in the Virginia Senate. In brief, Bolling concludes that his power to vote includes organizational matters such as determining rules of procedure and voting on officers. However, he also finds that he lacks the power to vote on final passage of certain matters, such as appropriations bills, tax bills and state constitutional amendments, for which the Virginia Constitution requires the vote of a “majority of the members elected to each house.” The Lieutenant Governor, Bolling reasons, is not an elected member of the Senate and therefore cannot break ties on a final vote on such matters.

More on Gingrich and Judges

Former Speaker Gingrich’s plan to rein in the federal judiciary has met with near-universal criticism, but Curt Levey has gamely offered a qualified defense in the Wall Street Journal. Levey contends that the attacks on Gingrich’s proposal are “overblown.” As an example, he has this to say about Gingrich’s idea of subpoenaing federal judges to testify before Congress:

Congress routinely asks executive officials outside the White House to testify about their decisions. It occasionally subpoenas them to compel attendance, and arrest would be a last resort.  It’s unclear why applying the same rules to the judicial branch threatens the separation of powers, especially if done in the context of considering judicial reform proposals like Mr. Gingrich’s.  Subpoenaing Justices of the Supreme Court, the only court created by the Constitution, is a possible exception.

So let’s take a closer look at this aspect of Gingrich’s plan and see whether it is in fact as radical as critics have suggested.

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