Advise and Dissent
The recess appointment power: a slow-motion train wreck
Apr 22, 2013, Vol. 18, No. 30 • By JEFF BERGNER
The Bush administration did not challenge the notion that the Senate was in session while in pro forma session and made no further recess appointments that were not agreed to by the majority leader. When President Obama took office in 2009, Reid suspended the use of pro forma sessions. President Obama made no recess appointments until March 2010 when—again during the spring break—he appointed 15 nominees. These included the controversial Craig Becker to serve on the NLRB. Becker’s nomination had failed to secure the 60 Senate votes necessary to overcome a filibuster and was stuck in the Senate. All 41 Republican senators sent a letter to the president urging him not to make a recess appointment of Becker. The president proceeded anyway.
In the fall of 2010, as the Senate was preparing to leave for the lengthy campaign season, Republican leader Mitch McConnell threatened to employ a little-used Senate rule to send all unconfirmed nominees back to the president. In order to avert this, Majority Leader Reid agreed to reinstate pro forma sessions in order to prevent the president from making recess appointments. This situation continued during subsequent Senate recesses.
All of this changed when President Obama announced on January 4, 2012, that he was recess-appointing three nominees to the NLRB as well as Richard Cordray to be the head of the new Consumer Financial Protection Bureau. The president’s urgency about NLRB appointees was motivated by the expiration of Craig Becker’s 2010 recess appointment on January 3, 2012. That would leave the NLRB without a three-member quorum to do business. For its part, the Cordray nomination was hopelessly deadlocked in the Senate.
President Obama suggested that pro forma sessions were a legislative gimmick during which the Senate did no real work. Interestingly, although the Senate order establishing the December 2011-January 2012 pro forma sessions stated that “no business [would be] conducted,” the Senate by unanimous consent passed a temporary payroll tax extension during the pro forma session on December 23. Also, the January 3 pro forma session fulfilled the constitutional obligation of the Twentieth Amendment to convene the second session of the 112th Congress. The White House Office of Legal Counsel argued that pro forma sessions, “through form, render a constitutional power of the executive obsolete.” Armed with this legal advice, President Obama ignored the pro forma sessions of the Senate and recess-appointed the three NLRB members and Cordray.
At this point Harry Reid, the architect of pro forma sessions, provided a definitive answer to the question of whether these sessions were a partisan ploy or a defense of Senate prerogatives. In a breathtaking 180-degree -reversal, Reid revealed himself as purely partisan, saying simply and without further rationale (indeed, what rationale could there be?), “I -support President Obama’s decision.”
It is quite possible that if the Supreme Court takes this case, it will rule on grounds other than how many days the Senate must be on break to count as a recess. The Court might choose to follow the D.C. Circuit Court’s reasoning and put an end to intra-session recess appointments altogether, thus depriving the modern presidency of a tool it has used regularly for decades. It might rule that even during recesses between Senate sessions, only nominees who are filling positions that become vacant during those recesses can be recess-appointed. This would further restrict the president’s appointment power. It is quite possible, in other words, that the respective overreaching of Harry Reid and Barack Obama has set up a situation in which not George Bush retroactively but all presidents going forward are the real losers.
Whatever else, it would be fair to conclude that the current situation is the worst of all possible outcomes. This is true for several reasons. First, President Obama has arrogated to himself the power to judge when the Senate is in session and when it is not. It would be a surprising constitutional outcome if the executive were to be the one to decide when the Article I branch of government is doing “enough” to qualify as being in session. As the D.C. Circuit decision says, this would demolish a set of checks and balances and give “the President free rein to appoint his desired nominees at any time he pleases, whether this time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”
Second, with the establishment of pro forma sessions Harry Reid’s legislative cleverness has made a mockery of Senate procedures. There is no doubt that pro forma sessions are a gimmick designed to prevent recess appointments. Worse yet, in wanting to eat his cake and have it too, Reid has established two sets of rules, one for a president of his own party and one for a president of the opposing party. This is as clear a case of the rule of men, and not of laws, as one can imagine.
The outlines of an accommodation that would have prevented this case from going forward are clear enough. The majority leader and the president might have agreed to return to the status quo ante, and allowed a 10-day or greater break to count as a recess. Or they might have adopted a broader set of understandings to force cooperation between the branches. But now it is perhaps too late to put the genie back in the bottle. As the D.C. Circuit decision makes clear, it is very difficult to find a non-arbitrary, constitutionally mandated number of days which count as a valid time in which to make recess appointments. Despite much creative scholarship, there are no compelling constitutional grounds for choosing any particular length of time. The Court itself might privately believe that this decision would have been better left to the normal compromises of the legislative and executive branches.
We may be on the cusp of another decision like INS v. Chadha, which struck down the legislative veto. There, too, an argument was made that too much was at stake to invalidate recent practice; the legislative veto, non-existent in the early years of the republic, had become an important tool of governance in the twentieth century. So it is now said that recess appointments, nonexistent in the first eight decades or more of the republic, have become an important tool of the presidency at a time of numerous appointees, frequent Senate recesses, and bitter Senate partisanship. But the Court said in Chadha that “the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” If the Court feels compelled to act, not only the powers of the presidency but also the numerous decisions of the NLRB over the past 15 months will likely be casualties.
One would have to ask whether personal pique over a nominee to serve as ambassador to Belgium, and the ensuing display of self-serving partisanship, is worth all that.
Jeff Bergner is adjunct professor at Christopher Newport University. He served as staff director of the Senate Foreign Relations Committee and from 2005-2008 as assistant secretary of state for legislative affairs. He is grateful for the assistance of Bruce Brown, who served as deputy assistant secretary of state in 2007 and who coordinated State Department nominations at the time.
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