- The Washington Times - Tuesday, August 9, 2011

To C-SPAN viewers, Tuesday’s House session opened just like any other: A Republican took the chair to gavel in the session, the dais was full of staffers and the chaplain opened with an invocation commemorating the chamber’s page program.

But expand the camera angle a bit, and the scene is anything but business as usual.

The floor is bereft of other members of the House, the public viewing galleries are almost empty, and Rep. Jeff Duncan of South Carolina soon taps the gavel again, closing shop without a single bit of business transpiring. Total time in session: four minutes.

Welcome to pro forma session — the abbreviated meetings that House Republicans have scheduled twice a week for the rest of August, while members of Congress are on summer recess. An obscure constitutional provision also means the Senate must convene regularly throughout the summer. Because the two chambers are in session, President Obama has no chance to make recess appointments of controversial nominees.

Indeed, an hour after the House convened, the Senate followed suit by coming into session for 34 seconds.

Article I, Section 5, Clause 4 of the Constitution says no chamber can be out of session for more than three days without the consent of the other chamber.

The intent, all sides agree, was to try to keep one chamber from shutting down the government by adjourning.

House Republicans, though, have turned around that formula by holding regular sessions throughout the summer so that the Senate also must remain in session.

“Throughout the August recess, my colleagues and I will preside over pro forma sessions in the House — preventing congressional recess and presidential recess appointments,” said Rep. Jeffrey M. Landry, a Louisiana Republican who helped organize the effort. It requires one lawmaker to return to Washington every few days to preside, just as Mr. Duncan did on Tuesday.

At issue is the president’s power to name top positions in his administration. Nominations normally must be confirmed by the Senate, but the president can make a recess appointment if the Senate is out of session.

The power was designed for the early years of the republic, when citizen lawmakers were the norm, Congress was in session sparingly, and the president otherwise might have waited months for an adviser to be confirmed.

In recent years, however, the constitutional clause has been used as an end-run around the Senate, where the rules allow 41 senators to block confirmations.

That has made even the decision to take recesses partisan affairs.

In 2007 and 2008, Democrats regularly kept the Senate in repeated pro forma sessions to deny President Bush the chance to make recess appointments.

In 2009 and 2010, Democrats controlled the White House and both chambers of Congress. Mr. Obama made use of congressional recesses to make appointments, including that of Donald Berwick as head of the Centers for Medicare and Medicaid Services, which will oversee a large portion of his health care initiative.

With government divided again this year, Republicans have blocked full recesses to try to deny Mr. Obama the same opening. Some Democrats had hoped Mr. Obama would have a chance to install a head of the new Consumer Financial Protection Board, over the opposition of Senate Republicans.

The origins of the adjournment provision of the Constitution are cloudy, but Peverill Squire, a political science professor at the University of Missouri, said the governors of the Colonies had the power to shut down legislatures.

When states wrote their constitutions, many created strong assemblies and weak governors who lacked the power to adjourn the legislature.

“That shifted the Constitution writers’ concerns to questions about the potential abuse of power between legislative chambers, with the fear that one chamber could use adjournment powers to coerce the other chamber to do its bidding,” Mr. Squire said. “Thus, Article I, Section 5, Clause 4 of the U.S. Constitution built on the state constitutions, and although it avoided creating legislative supremacy along the lines of the state constitutions, it also chose to prevent one chamber from using adjournment to force its preferences on the other chamber.”

Two centuries later, the clause is still helping Congress.

On Friday, the two chambers had finished business without extending the authority of the Federal Aviation Administration. That left tens of thousands of employees and contractors out of work and was costing tens of millions of dollars a day in uncollected airline taxes.

Acting with astounding speed, the Senate convened, adopted the bill passed by the House and then adjourned. Total time: 71 seconds.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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