Understanding Why Obama's Recess Appointments were Unconstitutional: Pro Forma

By Douglas V. Gibbs

Article I, Section 5; Procedure

Article I, Section 5 requires Congress to have a minimum number of members present in order to do business.  That majority constitutes a quorum, and if the Congress deems it necessary, may set fines for members who do not show up. The houses of Congress may remain in session, during which no formal business is conducted because the house does not have a quorum, so as to prevent executive actions that may be carried out during recess.  This kind of session is called a pro forma session.

Section 5 also states that each house may have its own rules, keep a journal to record proceedings and votes, and that neither house may adjourn without the permission of the other. Section 5 also establishes that if a member of a house does not follow the established rules, the house may punish its members for disorderly behavior, and by a two thirds vote may actually expel a member from Congress.

The establishment of rules, holding a hearing in regards to the breaking of those rules, and punishing a member for his behavior, as set forth by Article I, Section 5, was recently used when Charles Rangel broke the rules of the House of Representatives.  He faced a panel for his actions, and was punished by censure.

The mandate to keep a journal to record proceedings and votes was included in this section because the Founders wanted government to be transparent, accessible, and accountable to the people.

Terms:

Adjourn: Suspend proceedings to a later time and/or place.

Censure: Procedure for publicly reprimanding a public official for inappropriate behavior. There are normally no legal consequences. Censure is not mentioned in the Constitution, but is a procedure devised by the legislature as a tool for formal condemnation of a member of the congressional body.

Pro Forma Session: A session in either house of the United States Congress at which no formal business is expected to be conducted, so as to fulfill the obligation "that neither chamber can adjourn for more than three days without the consent of the other."  Pro forma sessions are also used to prevent the President from pocket-vetoing bills, calling the Congress into a special session, and to prevent the President from making recess appointments.

Quorum: Minimum number of members of an assembly necessary to conduct the business of that group.

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