Barack Obama won a modest summer victory. A select number of his long-blocked nominees were Senate-confirmed just prior to the August recess. While scores of executive, regulatory and judicial vacancies remain, the confirmations were a welcome win in the appointment war. Our president must redouble his fight, as now the Tea Party-controlled House of Representatives also seeks to obstruct his appointments.
Obama entered the White House believing that he could break the 20-year cycle of partisan appointment obstruction. Instead, nominee abuse and confirmation obstruction substantially worsened. For 30 months, even the most qualified nominees were slow-walked, held hostage and filibustered. Obstruction reached absurdity in May, when pre-emptive filibusters were lodged against “any” potential director of the new Consumer Financial Protection Bureau.
A separate battle front opened with congressional attempts to block Obama’s recess appointments. In fall 2010, Senate Majority Leader Harry Reid (D-Nev.) agreed to schedule pro forma sessions to block Obama’s recess appointments. (In exchange, Republicans agreed to lift filibusters on 54 nominees.) Reid first used sham sessions in 2007, to bluff President George W. Bush. Just as Bush did, Obama disregarded outside advice to call the Senate’s procedural bluff.
Unfortunately, Obama’s choice not to push back against the sham sessions may have been perceived as capitulation by opponents. Rep. Jeff Landry (R-La.) repeatedly boasts that 77 GOP freshmen successfully made a written demand that Speaker John Boehner (R-Ohio) “hit the kill switch” to prevent the Senate from recessing. The newest members of the lower chamber acted to, as Landry put it, “halt the exploitation of the recess appointment process.”
Fulfilling their threat that the pro forma sessions are “just the beginning” of a prolonged assault against Obama’s appointments, Tea Party freshmen forced the House to pass (patently unconstitutional) legislation to cancel salary payments of certain Obama recess appointees. The House freshmen vow to keep Congress in session for the remainder of 2011, and throughout 2012, because, as Landry put it, “the Senate’s advice and consent is being circumvented by a hostile Administration.” They brazenly manipulate both chambers’ schedules to “provide the Senate the ability to perform their constitutional duties.”
The strict constructionist Tea Partiers know that the Constitution gives the House no role in the appointment process. According to Alexander Hamilton’s Federalist writings, only the Senate is given the limited authority to “ratify or reject” the president’s choices.
In Federalist No. 77, Hamilton felt obliged to take “notice” of a “scheme” advocated by “just a few” to give the House influence in the federal appointment process. Hamilton dismissed the idea as worse than foolish. He accurately predicted that the House’s membership would grow to “four hundred persons,” and he presciently warned against House involvement with appointments: “A body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power.”
Against the Constitution’s structure and despite Hamilton’s warnings, the House attempts to misappropriate a role in the federal appointments process — albeit a negative one. The House usurpation strategy, however, has a faulty premise.
Obstructionists falsely assert, and the media uncritically repeat, that a Senate recess of more than three days is required to trigger the executive’s recess appointment authority. Obstructionists find specious support for a three-day minimum in a 1993 nonbinding U.S. Justice Department memo misapplying the Article I, § 5 adjournment-consent clause (a/k/a the Tea Party “kill switch”) to limit the Article II, § 2 recess-appointments clause. Any reasoned analysis proves the three-day congressional-comity requirement does not apply to — much less restrict — the executive’s unilateral recess-appointment authority. Rather, the Constitution does not require a recess minimum for appointments. A practical understanding of a Senate recess has developed throughout history. If the Senate is not sitting as a deliberative body so that its advice and consent can be timely obtained, it is in a recess sufficient to activate executive appointment authority.
In 2004, the U.S. Court of Appeals for the 11th Circuit stated that the Constitution “does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.”
Obama should recess-appoint a substantial number of nominees during the next series of Senate breaks, not only to fill important offices, but also to re-establish constitutional order.
Victor Williams is a clinical assistant professor at Catholic University of America Columbus School of Law.