President Obama and Senate Democrats have gone to great lengths to secure the appointment of executive-branch officers and judges and thus help advance his policies and programs. Obama has made recess appointments in a way no president before him did, an action now being challenged in National Labor Relations Board v. Noel Canning, which offers the Supreme Court the first occasion in its long history to opine on the until-now obscure recess appointments clause. Meanwhile, Senate Democrats have pushed through a new voting requirement for the upper chamber that effectively eliminates filibusters of the president’s nominees and hastens their appointment.
How those actions will affect the appointments terrain, and our politics more generally, is an unfolding story. Obama’s recess appointments are almost certainly unconstitutional, and he risks a decision by the Court that could weaken the office of the presidency. Even so, the new measure intended to curtail filibusters will make it easier for Obama to appoint executive officers and judges who share his views. The measure will work this effect for the balance of 2014 and, if the Democrats retain control of the Senate in the elections this fall, for the final two years of his presidency. In the new appointments war, Obama holds the upper hand.
The Constitution treats appointments in Article II Section 2, where the appointments clause sets forth the familiar process by which the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” cabinet officers and other top executive-branch officials as well as judges. Immediately following it is the recess appointments clause, which says: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
Writing in The Federalist, Alexander Hamilton said the former clause provides “the general method” of appointment while the latter clause supplements it with “an auxiliary method,” to be used in cases “to which the general method [is] inadequate.” In such cases, observed Hamilton, appointments are made “singly,” by the president only, and not “jointly,” as they are under the general method.
It bears noting that the general method does not allow for an appointment to occur unless the Senate approves the nomination, while the auxiliary method permits only a temporary appointment that is made without the Senate’s concurrence. A president acting under the auxiliary method thus does not have to win the agreement of a Senate that may otherwise reject his nominees. In fact, a president resorting to the auxiliary method may be doing that in order to evade the Senate’s advice-and-consent role. As Obama has done.
His (putative) recess appointments were made to fill seats in two parts of the regulatory state where, not surprisingly, the policy differences between the two parties are among the sharpest—the Consumer Financial Protection Bureau and the National Labor Relations Board.
On July 18, 2011, Obama nominated Richard Cordray as director of the CFPB, notwithstanding that 44 Republican senators had previously declared their opposition to any nomination for that position unless the bureau were significantly restructured. The Senate, with Democrats then holding a 53-seat majority, was still working under a rule of deep historical roots whereby a 60-vote supermajority was necessary to overcome a filibuster of a nominee and set up a confirmation vote. On December 8, 2011, Cordray received 53 votes to end the filibuster of his nomination, 7 shy of the number he needed, and thus a vote on his nomination was denied.
Meanwhile, over at the National Labor Relations Board, 2011 was winding down with three lawfully appointed members on a board with five seats. One of the three was a recess appointee whose tenure was to expire on January 3, 2012. So the board, which by law must have three lawfully appointed members for a quorum to issue decisions, soon would have just two such members.
On December 17, 2011, Obama made nominations to fill the existing vacancies. But rather than stick with the general method of appointment by resubmitting the Cordray nomination (or nominating someone more agreeable to the Senate) and pressing for confirmation of the two NLRB nominees, Obama changed course in order to avoid the Senate: On January 4, 2012, he invoked the recess appointments clause and announced his intention to install Cordray as head of the CFPB and to fill what had by then become three vacancies on the NLRB.