President Obama has taken some flack this week for making recess appointments while the U.S. Senate was not technically in recess. The Senate has been holding what are known as “pro forma” sessions on Capitol Hill. But a lot of folks don’t know what a pro forma session is or why the President’s decision is controversial, so let’s break it down.
1. What is a “Recess Appointment”?
The President of the United States is empowered to appoint individuals to certain offices in government. The obvious ones are U.S. Supreme Court justices and federal judges. He also appoints the directors of administrations like the Social Security Administration. These appointees must go before U.S. Senators for review and approval before their appointment becomes official. It’s like being interviewed for a job: The President calls them in for the interview, but the Senate conducts the interview and decides whether or not to hire them.
But what happens if the Senate is not in session and an important position needs to be filled? When our Founders wrote the Constitution, they foresaw situations in which government officials might be away from Washington, in recess. In those days, it could have taken weeks to recall Congress to address major developments. To circumvent national emergencies or breakdowns in government, they gave the President the power to make executive decisions in Congress’s absence, like the power to appoint people to government without the Senate’s approval while the Senate is in recess.
2. What is a “Pro Forma Session”?
“Pro forma” is a fancy way of saying “as a formality.” When Congress has little or no immediate business to address, they can opt to hold pro forma sessions in which clerks may read memos or directives to Congress, but no votes or debate take place. The meeting is just a formality.
If you watch a pro forma session on C-Span, you’ll notice that they are poorly attended and don’t last more than a few minutes. So why meet at all?
Under the Constitution, in order for the Senate to go more than three days without convening, they must get the approval of the House of Representatives (likewise, the House has to get the Senate’s permission before it can go into recess). Pro forma sessions allow the Senate or the House to fulfill their obligation to meet, even when there is not any important business to see to.
Was the President Wrong to Make Three Recess Appointments This Week?
In our opinion, yes. We could argue over whether or not the U.S. Senate has important work it should be seeing to instead of holding these pro forma sessions. Regardless, the fact is they were meeting, even if it was just as a formality rather than to vote on bills or appointments. These pro forma sessions have been deemed to satisfy the definitions of what it means to be “in session” and what it means to be “in recess.” If it is good enough for federal law, it should be good enough for the President.
Video of Pro Forma Session Last Wednesday: http://www.c-spanvideo.org/program/SenateProFormaSession
