Presidents and Presidential Precedents

Article II of the U.S. Constitution is clear about the powers it vests to the President of the United States.

However, it’s frequently silent about how a president executes those powers.

George Washington had no archetypes to guide him when he assumed office. So Washington was keenly aware of the precedents and customs he would set as the nation’s first executive.

Article II, Section 2 of the Constitution granted the president the power to make treaties and to appoint cabinet members and other officials, so long as he had done so “with the Advice and Consent of the Senate.” So when President Washington forged a treaty with the Creek Indians in 1790, he actually paid a visit to the Senate to seek its counsel.

In his book “Founding Father,” Richard Brookhiser recounts that senators were distracted by the noisy passing of carriages as Washington made his case for a trade pact with the Creeks. Someone finally shuttered the windows. Still, failing to digest Washington’s oral presentation, senators demanded to see paperwork spelling out the terms of the deal.

“This defeats every purpose of my coming here!” thundered Washington, says Brookhiser.

Washington returned again when the Senate finally grasped what the new executive was proposing with the Creeks. Brookhiser writes that Washington said he “would be damned if he ever went there again” in person to seek the advice and consent of the Senate.

And as a result of Washington’s experience, Brookhiser notes that no president has done so since.

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One wonders if there would be a rowdydow about President Obama’s recess appointments today if George Washington had successfully captured the undivided attention of senators amid the bedlam outside the Senate. After all, had Washington personally visited the Senate for the next treaty and the next nomination….and then the one after that….and the one after that, he undoubtedly would have established precedent for how the executive seeks advice and consent. The recent ruckus over recess appointments offers another problem: what if the President of the United States called on the Senate to discuss appointments and treaties….and no one was there.

Article II, Section 2 of the Constitution grants presidents the authority to “fill up all Vacancies that may happen during the recess of the Senate.” This is called a “recess appointment.” Some may question whether the vacancies in question must occur when the Senate is away.

Of course, a great debate now rages over what constitutes a Congressional “recess.” Neither the House nor Senate have conducted any legislative business of consequence since just before Christmas. That’s when both bodies okayed an extension of the payroll tax break. Since then, the House and Senate have only met for just a few seconds every three days to fulfill their respective Constitutional obligations. These abbreviated meetings are called “pro forma” sessions. They’re perfunctory affairs, as the Constitution prohibits either chamber from adjourning for more than three days without the blessing of the other.

The House and Senate convene these abbreviated sessions with a skeleton staff and only a lawmaker or two present. And in the eyes of the Obama Administration, pro forma sessions don’t count as regular meetings of the House and Senate.

“They’re not in session,” contended a senior administration official with knowledge of the recess appointment strategy in an interview with FOX. “The only stated purpose of the pro forma session is to block nominees.”

In other words, if the Senate is in session, then the president cannot appoint nominees without seeking advice and consent. If the Senate is indeed out of session, then Article II, Section 2 gives the president the authority to make a “recess appointment.” It’s the position of the White House that the Senate is unable to receive a nomination under this current operational status.

In fact, Mr. Obama originally sought the advice and consent of the Senate in the case of Richard Cordray. President Obama just appointed Cordray to serve as the director of the newly-minted and controversial Consumer Financial Protection Bureau (CFPB). However, a Republican-led filibuster blocked Cordray’s nomination from final consideration in December.

So when the Senate began its ritual of meeting in pro forma sessions at three day intervals for the holidays, the president made the unilateral decision that the Senate was in fact in recess. That decision granted President Obama the opportunity to install Cordray as the head of the CFPB via a recess appointment.

But what if things had gone better for President Washington when he called on the Senate in person to discuss the treaty with the Creeks? What if a personal appearance by the president became de rigueur when seeking advice and consent? It certainly would have given more clarity as to the thorny issue of what constitutes a Congressional recess. If Mr. Obama came calling on Tuesday, the Senate could have at least argued it conducted a pro forma session at noon that day. But what about Wednesday, the day President Obama made recess appointments for Cordray and three others to serve on the National Labor Relations Board? The Senate certainly wasn’t in session then and only a handful of senators have even darkened the Capitol grounds all week.

This prompted White House Communications Director Dan Pfeiffer to Tweet that “it’s worth asking where the senators are who are issuing statements today saying the Senate is not in recess. I bet it’s not the Senate floor.”

As the first president, George Washington set the initial precedent of appealing to senators in person when advocating treaties and nominations. He quickly reversed course. And the custom Washington established hasn’t changed in 221 years.

The question now is whether Mr. Obama set a new precedent for recess appointments.

“This is an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department,” howled House Speaker John Boehner (R-OH). “The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our Constitution.”

Rep. Tom Reed (R-NY) also fretted about the new ground Mr. Obama may be tilling with this spate of recess appointments.

“This action opens the door for future presidents to ignore the Constitutional protections of power for the U.S. Senate and abuse the definition of recess,” said Reed. “What’s next? Supreme Court appointments being made at 2:00 am because the Senate is not in active session?”

Much can be gleaned about the relationship the Founders intended between the president and the Senate in the Federalist Papers. In Federalist #67, Alexander Hamilton argued that the option of a recess appointment was essential because “it would have been improper to oblige this body to be continually in session for the appointment of officers as vacancies might happen IN THEIR RECESS (Hamilton’s own emphasis).”

But in Federalist #77, Hamilton also indicates that it’s crucial to have buy-in from both the president and the Senate for an appointment. Hamilton writes that leaving the Senate out of the equation means “the blame of a bad nomination would fall upon the president singly and absolutely.” Moreover, Hamilton says if the Senate rejects a good nominee, the fault “would lie entirely at the door of the Senate.”

Hamilton believed it was best when two branches of government have their say on a nominee.

“If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace,” Hamilton wrote.

Of course, that raises the question as to whether the Senate did in fact already provide its “advice and consent” on Cordray. A Republican-led filibuster torpedoed his nomination a few weeks ago. And if the Senate blocked a nominee, did the Founders anticipate that a  president would circumvent the confirmation process by running a recess appointment gambit?

Hamilton writes about this too in Federalist #70. That’s where he asserts “energy in the executive is a leading character in the definition of good government.”

Part of this is the natural evolution of the executive office. Some people may interpret it as a “power grab.”

As commander-in-chief, George Washington had a few warships and only several hundred soldiers under his command. President Obama now has well over two million military personnel at his disposal (including reservists) and an intercontinental nuclear arsenal.

Did presidential power expand when the Supreme Court tossed aside the so-called “legislative veto” in INS v. Chadha? That decision stripped Congress of its ability to restrict the executive branch’s authority when it makes law.

What about the marked increase of presidential signing statements? That’s where presidents try to modify statutes in ways not necessarily intended by Congress.

Was it a gross overreach of executive branch authority when the FBI threatened to tear down the door to the office of former Rep. Bill Jefferson (D-LA) as part of a 2006 criminal investigation? Many lawmakers viewed the Jefferson incursion as an extraordinary case of the executive branch tramping on a co-equal branch of government.

And what about President Obama involving the U.S. in the NATO-led air campaign in Libya without a formal declaration of war from Congress? Pentagon and Justice Department lawyers suggested that the U.S. was involved in “hostilities” against a sovereign nation and may have operated outside the bounds of the War Powers Act. Thus, Congress may have needed to authorize the use of force to permit American participation.

Each of these instances may help establish precedent for the executive branch. What remains to be seen is whether these episodes are one-time deals or become tradition.

In the case of President Washington and the Creek Indians, he initially believed he was obliged to engage in a personal consultation with the Senate to fulfill the advice and consent requirement. But that soon changed. And no president has done it that way in 221 years.

As for the potential precedent that could be set by Mr. Obama’s recess appointments, check back in 2233.