Confirmation Bias: A Shameless Flip-Flop on Recess Appointments
11:44 AM, Jan 10, 2012 • By ADAM J. WHITE
President Obama’s recent recess appointments have sparked no shortage of legal commentary. Does the president have the power to declare that the Senate is in "recess" in the middle of a session, and then to use his constitutional "recess appointment" power to install disfavored personnel at federal agencies?
I've already offered my own analysis of the president's actions; so have countless others. But the most curious contribution to the debate is Laurence Tribe's op-ed in the New York Times. Tribe argues strongly in favor of President Obama's power to make "intra-session" recess appointments—that is, not just during the formal "recess" between the Senate's annual "sessions," but also during a temporary break within a session.
But in the course of his analysis, Tribe neglects to mention an important point: in 2004, he co-wrote a legal brief on behalf of Senator Ted Kennedy, in opposition to President Bush's recess appointments—a strongly-worded brief that contradicted (indeed, belittled) the very position he now stakes out in favor of President Obama's power grab.
In support of Obama, Tribe asserts that the president's power to deem the Senate to be "in recess" and then make recess appointments "is clearly stated in the Constitution" and is further supported by "past practice." But against Bush, Tribe argued that "[t]he text, structure, purpose, function, and pre-1921 history of the Recess Appointments Clause all confirm . . . that the President may not make recess appointments during intra-session Senate breaks."
In support of Obama, Tribe argues that intra-session recess appointments are especially justified when the Senate is deliberately "frustrat[ing] presidential appointments." But against Bush, he argued the opposite: recess appointments are all the more illegitimate when the nominee in question already had been the subject of Senate debate yet "failed to obtain enough votes to go forward under Senate rules."
In support of Obama, Tribe argues that the Senate made itself "unavailable" by largely leaving Washington. But against Bush, he scoffed at the notion that the Senate was ever truly unavailable, thanks to modern technology: even during "holiday breaks that typically last one or two weeks," Senate business "can easily resume, if necessary, owing to modern communications and transportation."
In support of Obama, Tribe invokes Alexander Hamilton's Federalist 67 for the proposition that recess appointments, even intra-session appointments such as Cordray's, are justified when "necessary for the public service to fill without delay." Against Bush, by contrast, he invoked Federalist 67 for the proposition that "recess appointments would be 'necessary,' and thus permissible, only outside the 'session of the Senate"—i.e., never during type of intra-session break that President Obama exploited last week.
In defense of Obama's recess appointments, Tribe said that the president was setting a precedent that would apply "only in instances of transparent and intolerable burdens on his authority." But when Bush made recess appointments, Tribe warned of a slippery slope toward tyranny: We cannot "take comfort in the hope that no President is likely to abuse the recess appointment power" whenever the Senate opposes a nomination, because of the "hydraulic pressure inherent within" the presidency and other branches of government "to exceed the outer limits of its power."
The legal case in favor of President Obama "ought to be a slam dunk"; the same case, in favor of President Bush, was "novel" and "ominous." And so on.
So why is Tribe contradicting himself so shamelessly, especially when he has not hesitated to break ranks with the left in other controversial legal debates over presidential power? If I had to guess, Tribe's shameless double-standard on recess appointments owes to one crucial fact: If Republicans maintain or increase their power in the Senate in 2012, then President Obama may well choose to recess-appoint federal judges, perhaps even Supreme Court justices.
Adam J. White is a lawyer in Washington, D.C.
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