The White House seemed confused over which chamber it is dealing with when it comes to the controversial recess appointments President Obama made last week.
Twice on Thursday — in a Twitter message and again in the daily press briefing — officials pointed to the House being out of session.
“I believe on the House majority leader’s website today it said the House was not in recess — I mean, not in session,” said Jay Carney, the press secretary.
The only problem with that is that the House is irrelevant to recess appointments. The only question that matters is whether the Senate is in session.
And on that, there are several key tests, with strong constitutional arguments on both sides of the controversy.
Here are the White House’s best arguments in favor of Mr. Obama’s recess appointments:
— The Senate is meeting every three days in “pro forma” sessions under a specific order that no business be conducted. And with most senators back home, the White House says they cannot properly be consulted, thus they cannot fulfill their advise and consent role on nominations — triggering the president’s appointment powers outlined in the Constitution.
“If the Senate can avoid a ‘Recess of the Senate’ under the clause by having a single member ‘gavel in’ before an empty chamber, then the Senate can preclude the president from making recess appointments even when, as a practical matter, it is unavailable to fulfill its constitutional role in the appointment process for a significant period of time,” the Justice Department said in a new legal brief written after Mr. Obama’s appointments, and released Thursday.
— The White House also argues that the president has the power to determine when the Senate is in session and when it is not.
Here are the arguments that could cut both ways:
— Senators may not introduce legislation during pro forma sessions, unless there is unanimous consent by all senators to do so.
— During pro forma sessions, the Senate can receive messages from the president, though they are not printed in the Congressional Record until the full chamber reconvenes, which sends mixed signals about how open the Senate is for business.
And here are the best arguments against the president’s interpretation:
— The courts generally have left each branch to determine its own rules, which cuts against the Justice Department’s argument that Mr. Obama can determine when the Senate is in session and when it is not. And the Senate has considered pro forma sessions to be “in session” for purposes of blocking recess appointments. In fact, Democrats used the same three-day pro forma meetings to block Republican President George W. Bush from making recess appointments in 2007 and 2008. Mr. Obama was in the Senate at the time.
— While bills cannot pass during pro forma sessions unless there is unanimous consent, but that happened twice last year — on both a Federal Aviation Administration bill and again in December on the two-month payroll tax cut. Both times Mr. Obama signed the legislation into law, signaling that a pro forma session doesn’t rule out any action, it just constrains it under normal circumstances.
— If the Senate goes out of session for more than 30 days during a Congress, all unconfirmed nominations are automatically returned to the White House under Senate rules. That happened earlier in Mr. Obama’s term, but did not happen now, signaling that the Senate considers itself still in continuous session.
It’s worth noting that the 2010 law that set up the Consumer Financial Protection Bureau said the director only gets invested with powers once he is confirmed by the Senate. That is striking language that is also likely to prompt a court challenge once Richard Cordray, the man Mr. Obama installed last week, makes his first decision.
Asked about that on Thursday, Mr. Carney didn’t answer directly, instead pointing to the House being out of session.