Top Democrat Dodges Question on Constitutionality of Obama Appointments, Says Pro Forma Sessions Are ‘Games Being Played’

By Edwin Mora | January 6, 2012 | 2:59pm EST

Rep. Chris Van Hollen (D-Md.) (AP Photo)

( – Representative Chris Van Hollen (D-Md.), when asked whether Obama’s appointments on Wednesday while the Senate was in pro forma session were unconstitutional, did not answer directly but said such congressional sessions are “games being played” that the president can ignore to appoint people to federal posts.

Article 2, Section 2 of the Constitution requires presidential appointees to be confirmed by the Senate before they can take office unless the Senate is in recess or if the appointments are to inferior offices that Congress has legally given the president the power to control. When the Senate is in recess, the president can make temporary appointments that last only until the end of the next session of Congress. However, the Senate was not in recess on Wednesday.

At the Capitol on Friday, asked Van Hollen, “Do you think there’s a constitutional argument against the recent appointments that president Obama made?”

Van Hollen, a leading member among House Democrats, did not answer the question directly but said, “I think that the White House lawyers, like previous counsels during the Bush administration, have made a very good point with respect to games being played with, you know, claiming that we are at work when we’re not.  As you saw, people came in, said the pledge of allegiance, said the prayer, and that was it. Four minutes out of the day. I don’t think any American thinks that’s a full day’s work.”

A pro forma session of Congress is a brief meeting, sometimes lasting only several seconds, of either the House or Senate in which no legislative business is conducted. Usually, it is aimed at satisfying the Article 1, Section 5 constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other.

Historically, both parties have held pro forma sessions to block presidential nominees given that Article 2, Section 2 of the Constitution says that the only time that the president can make an appointment without Senate confirmation is if the Senate is in recess, which has not been considered the case during pro forma sessions, or if the appointments are to the inferior offices that Congress has legally giver the president the power to control.

President Barack Obama shakes hands with Richard Cordray before speaking about the economy, Wednesday, Jan. 4, 2012, at Shaker Heights High School in Shaker Heights, Ohio. In a defiant display of executive power, President Barack Obama on Wednesday will buck GOP opposition and name Cordray as the nation's chief consumer watchdog. Outraged Republican leaders in Congress suggested that courts would determine the appointment was illegal. (AP Photo/Haraz N. Ghanbari)

The president on Wednesday invoked his “recess” appointment power to name Richard Cordray as director of the Consumer Financial Protection Bureau and Sharon Block, Terence Flynn, and Richard Griffin as members of the National Labors Relations Board even though both chambers of Congress were holding pro forma sessions.

Republicans have argued that the president’s appointments are an unconstitutional “power grab.” The White House, on the other hand, said that the Constitution granted the president authority to make his appointments because a pro forma session is the same as being in recess.

During a Jan. 4 briefing aboard Air Force One, White House Press Secretary Jay Carney said, “[T]he president's counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks. The Constitution guarantees the president the right, provides the president the right to make appointments during Senate recesses, and the president will use that authority to make this appointment.”

“Where pro forma sessions are used, as the Senate has done and plans to continue to do, simply as an attempt to prevent the president from exercising his constitutional authority, such pro forma sessions do not interrupt the recess,” said Carney. “And I would note that this is the view of White House counsel.”

In a White House post online the same day, Dan Pfeiffer, Obama’s communications director, echoed Carney’s claim that the Senate was in recess when the president made the appointments, adding that pro forma sessions are GOP “gimmicks.”

John C. Eastman, a professor at Chapman University School of Law and an expert on the constitutional separation of powers, told that Obama’s decision ignores Article 1, Section 5 of the Constitution, which states, “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.”

The Republican-controlled House did not allow the Senate to adjourn, so neither chamber was in recess.

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