Article II, Section 2 states, in part: “The President shall have the 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.” The power to make recess appointments has been relatively non-controversial for more than two centuries. Until now!
The recess appointment provision was included in the Constitution to allow the government to function during times when the Senate was not in session. Over the past two-plus centuries the process has evolved. Appointments are made when the Senate is out of session for the year, but also during “intra-session” periods, when the Senate leaves for a week or two. Further, the original purpose associated with the process has been obviated, mostly, as the Senate can assemble on about 24 hours’ notice, if necessary, given air travel.
And the controversy? Well, over the past several years President Obama’s ability to get nominees confirmed has been challenged in ways that border on unprecedented. Examples about; here’s my favorite:
The Dodd-Frank Wall Street Reform and Consumer Protection Act created the Consumer Financial Protection Bureau. Elizabeth Warren, the Harvard Law School professor—she’s now the senior Senator from Massachusetts—who was clearly qualified for the job was a non-starter. Then, President Obama nominated Richard Cordray, the Ohio Attorney General and former law clerk to liberals Robert Bork and Anthony Kennedy. Another clearly qualified candidate. Didn’t matter, though, for more than 40 senators committed to not considering anyone unless the agency changed significantly. So, no “advice and consent” on a qualified nominee. Just, “we don’t like this agency, so no one will be heading it up.” (President Obama made a recess appointment, and Mr. Cordray got his vote—66-34—months later.
The recess process has also been the subject of rules-based mischief. I’m no master of the rules of the U.S. Senate, but pro forma sessions that last a moment or three torture the meaning of the word recess.
Commenters on the controversy abound. Two who I focused on are Norm Ornstein and Doug Kmiec. I focused on them because they are not “liberals” by any reasonable measure. Mr. Ornstein works for the American Enterprise Institute, a conservative think tank, while Mr. Kmiec was the Dean of the Catholic University of America law school, teaches law at Pepperdine University, and worked for Presidents Reagan and Bush. (True, he did endorse Barack Obama in 2008, and did serve as Ambassador to Malta from 2009-2011, but he endorsed Senator Obama because, as he put it, “he was sounding more Catholic than most Catholics I know.”) From the New York Times, from January 21, 2014, here’s Disarming the White House by Mr. Ornstein. And from The Huffington Post on January 29, 2013, here’s Making Mischief with Recess Appointment Authority–The DC Circuit Adds New Ways to “Just Say No” by Ambassador Kmiec. Both question the wisdom of any effort to change the rules.
Now, National Labor Relations Board v. Canning, No. 12-1281, awaits a decision of the U.S. Supreme Court. Reporting on the oral arguments from back in January suggest that the power to make recess appointments will be limited or eliminated. We’ll know soon enough. If the reporting proves out, we’ll have an “inside-out” outcome, in which the party that has supported expanded presidential powers for at least the past 45+ years—the Republicans—will have reduced that power significantly. And the party of Congress, the Ds? Well, if by some chance they end up with the Congress and a Republican president, we’ll be hearing lots of clichés about “sauce for the goose,” “shoe on the other foot,” etc. Stay tuned!