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The recess appointment power: a slow-motion train wreck

Apr 22, 2013, Vol. 18, No. 30 • By JEFF BERGNER
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On January 25, the D.C. Circuit Court of Appeals ruled that President Obama did not have the constitutional authority to make recess appointments for three new members of the National Labor Relations Board (NLRB). It concluded unanimously that the president had no authority to make recess appointments during intra-session breaks of the Senate, and further that recess appointments can be made only for positions which come open during that same recess. The court vacated the many decisions that the NLRB made during the year between those appointments (January 4, 2012) and the date of its ruling.

Sam Fox in Belgium, 2008

Sam Fox in Belgium, 2008

Newscom

The Obama administration has decided to appeal this sweeping decision to the Supreme Court, and its petition for certiorari is due by April 25. Because appeals courts have ruled differently from one another on this issue, because 30 additional cases are pending in all but three of the federal circuits, and because the executive branch is seeking a decision, there is a high likelihood the Court will accept this case.

The recess appointment power has strained relations between the Senate and the executive branch off and on for years. These strains have been papered over on many occasions. What has caused this now to become a case in which the Supreme Court might intervene to resolve a longstanding issue between the legislative and executive branches? It is the story of a slow-motion train wreck.

THE FOX NOMINATION

The story begins with the nomination of Sam Fox to serve as U.S. ambassador to Belgium in 2007. Sam Fox was a successful and well-regarded St. Louis businessman, civic leader, and philanthropist who made a fortune estimated at a billion dollars from scratch. He was a demonstrably capable man, and the post for which he was nominated has often gone to wealthy donors of the president’s party. To put it politely, few nettlesome issues have marred the U.S.-Belgium relationship in recent years, and Fox was as qualified as any past political nominee to serve in this post.

What went wrong was that among Fox’s many contributions to Republican causes was a $50,000 donation to Swift Boat Veterans for Truth. The Swift Boat Veterans had run campaign spots against John Kerry in the 2004 presidential campaign, ads whose impact was hard to measure but which clearly were not helpful to Kerry’s electoral prospects.

Unfortunately for Fox, John Kerry was still sitting as a senior member of the Senate Foreign Relations Committee, which had jurisdiction over his nomination. At Fox’s hearing on February 27, 2007, Kerry grilled him about his contribution to the Swift Boat Veterans. Fox was unapologetic; he said that persons in his position often make numerous contributions and this was but one that he had been asked to make.

In the weeks between the hearing and a committee vote, Senator Kerry reached out to his Democratic colleagues on the Foreign Relations Committee asking for their support in opposing the Fox nomination. Because Democrats held an 11-10 advantage at that time, their unified opposition to Fox would kill his nomination. Kerry’s argument was that in donating to the Swift Boat Veterans, Fox had displayed “poor judgment,” which disqualified him from serving as ambassador. All Democrats on the committee lined up in solidarity with their colleague to oppose the Fox nomination.

A committee vote was scheduled for the morning of March 28. The afternoon before, my staff and I conducted a conference call with several members of the White House legislative staff. What were our options? Could we turn any Democratic votes? No, they were solidly behind Kerry. Would all members show up for the vote? Kerry held the proxy votes of all the senators who couldn’t attend. In short, there was no way to win. It was the consensus of everyone on the call to ask the president to withdraw the Fox nomination, to avoid an embarrassing loss for himself and the nominee.

I waited the following morning for a letter from the White House withdrawing the Fox nomination. It arrived shortly after 10 a.m., and armed with the letter we jumped in a car and headed to S-116, one of the committee’s rooms in the Capitol, for the scheduled 11 a.m. committee meeting. When Chairman Joe Biden and ranking Republican Dick Lugar arrived a few minutes before 11, I asked if I might speak to them about the Fox nomination. Biden volunteered that the committee intended to hold a separate vote on the Fox nomination, and that the other non-controversial nominations would be approved en bloc. I handed the president’s letter to Biden and explained that the president had withdrawn the Fox nomination. Not only was there no need for a vote on Fox, technically the committee could not vote on the nomination because it was no longer before the Senate.

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