The White House Is Wrong — The Senate Conducted Business During Its 'Recess'

In the uproar over President Obama’s unconstitutional “recess” appointments (Richard Cordray to head the Consumer Financial Protection Bureau and three new members of the National Labor Relations Board), one fact has gotten too little attention.

Attempting to justify the president’s violation of the Constitution and 90 years of legal precedent, presidential spokesman Dan Pfeiffer claimed that the president can exercise recess appointment powers because the Senate’s pro forma sessions—conducted since mid-December—are merely “a gimmick” during which “no Senate business is conducted and instead one of two Senators simply gavel in and out of session in a matter of seconds.”

However, a simple review of the Congressional Record (“CR”) shows that claim to be categorically false.

Most senators left D.C. on Dec. 17 after scheduling pro forma sessions for December and January.  The CR for Dec. 17 shows that Sen. Ron Wyden (D-OR) received unanimous consent to schedule Dec. 23 as a pro forma session.

The CR for Dec. 23 shows that Senate Majority Leader Harry Reid specifically asked for unanimous consent for H.R. 3765 so “that if the House passes and sends to the Senate a bill which is identical to the text extension of the reduced payroll tax, unemployment insurance, TANF, and the Medicare payment fix, the bill be considered read three times and passed.”

In that pro forma session, Reid received unanimous consent and the two-month extension of the payroll tax break that had caused such a political commotion in Washington was considered read and passed in the Senate after the House acted. That’s not a “gimmick.” That’s legislating.

That same CR for the Dec. 23 pro forma session records a series of other business actions taken by the Senate.  The president pro tempore signed several enrolled bills.  Other senators were designated as members of a conference committee to negotiate with the House over disagreements to H.R. 3630.   The minority leader even made appointments  to the United States-China Economic and Security Review Commission, pursuant to 22 U.S.C. § 7002.

Contrary to White House assertions, the Senate unquestionably conducted actual business during at least one of its supposedly pro forma sessions.  This simple fact makes President Obama’s actions even more indefensible.

The president’s ends don’t justify his means.  Politics should not trump the principle that we – and particularly the president – operate under the rule of law and the bounds of the Constitution.  When a president disregards the facts and shows such contempt for this principle, it is more than disappointing, it threatens the foundations of our republic.  Leaders who believe they need not abide by the rules and the law have led more than one republic down the road to tyranny.