Is it now time to “regularize” recess appointments as the primary method of principal-officer staffing? Article II, § 2 has a dual appointment design, with ordinary and recess processes. The Jan. 6 memorandum by the U.S. Department of Justice’s Office of Legal Counsel, released on Jan. 12, provides exhaustive legal support for recess appointments made anytime during which “the Senate is unavailable to perform its advise-and-consent function.” The Senate’s confirmation process — long analyzed as dilatory and dysfunctional — needs a fundamental reboot. Perhaps a regular use of recess appointments is needed to immediately fill critical vacancies and to incentivize the Senate to return to its original textual duty — to provide timely advisory consent.
President Barack Obama signed four recess commissions during the Senate’s ongoing holiday break. Obama appointed three members of the National Labor Relations Board: Sharon Block, Richard Griffin and Terence Flynn (reinstating its quorum/legal authority) and the long-blocked director of the Consumer Financial Protection Bureau, Richard Cordray (finally allowing the new agency to fulfill its regulatory mandate).
