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).
However, scores of other critically important federal posts remain vacant, at the Federal Reserve Board, Federal Communications Commission, Treasury Department, Federal Deposit Insurance Corp., Federal Election Commission, Office of the Comptroller of the Currency and the departments of State, Housing, Justice, Commerce, etc. And 84 federal trial and appellate benches remain empty.
In announcing his CFPB appointment, Obama was clear about his obligation: “I’m not going to stand by while a minority in the Senate puts party ideology ahead of the people that we were elected to serve.” If Obama were to use recess appointments as his default method, he could keep the government fully functioning and give the Senate the impetus to heal its broken confirmation process.
Since early 2009, Obama’s exceptionally well-qualified and historically diverse nominees have languished in confirmation limbo for months and even years. This pattern continues a destructive cycle of confirmation obstruction and partisan payback worsening during the past four presidencies. Extreme slow-walking, “blue slip” denials, extortion holds and filibusters cause extended vacancies that systemically damage executive, regulatory and judicial operations.
Repeatedly going the extra mile to seek confirmation cooperation, Obama has made only very limited use of recess appointments. In his first two years, he recess-commissioned fewer officials than any modern president. Yet House tea party leaders joined Senate obstructionists to manipulate congressional schedules into holding pro forma sessions attempting to block Obama’s recess-appointment authority. The scheduling gimmick rests on a faulty foundation — the myth that the “three days” found in Article I, § 5′s adjournment consent clause is the minimum recess time needed to trigger Article II appointment authority. Shams and gimmicks often rely on misunderstandings.
The obstruction worsened at the end of 2011. As the Senate left town, Senate Minority Leader Mitch McConnell (R-Ky.) unsuccessfully demanded that Obama promise not to sign any recess commissions during the Senate’s break. McConnell vengefully blocked a confirmation vote scheduled for 50 officials (including 21 judge nominees) when Obama declined the Article II, § 2 shakedown.
Two days into the break, all 47 Senate Republicans warned the president in writing of “a constitutional conflict” if he signed recess commissions. The letter warned Obama that NLRB recess appointments would “set a dangerous precedent” that would “marginalize the Senate’s role in confirming nominees.” Of course, it is partisan blocking of up-or-down votes that manifests the real marginalization of the Senate role. The letter also omits the fact that George W. Bush recess-appointed seven NLRB members. Partisans overplayed their obstructionist hand. Obama boldly challenged both their confirmation malfeasance and pro forma gimmickry.
White House Counsel Kathryn Ruemmler explained why the president was obliged to sign the commissions: “The president has recess authority under the Constitution so he can continue to fulfill his constitutional function — which is to run the government — when the Senate is unavailable to fulfill its function.” The president’s lawyer noted that the Senate “is unavailable despite the fact that it is in a ‘pro forma’ session for 30 seconds every three days.” Ruemmler fully responded to Obama’s opponents and others who mistakenly assert that the Senate’s five-week holiday break was not a sufficient recess: “Our view is that a pro forma session at which the Senate, by its own definition, is not conducting any business and is unavailable to provide advice and consent on the president’s nominees is for all practical and functional purposes in recess.”
Administration opponents now propose burdening our understaffed federal judiciary with lawsuits challenging the recess appointments. Yet, the U.S. Court of Appeals for the 11th Circuit in Evans v. Stephens (2004) already ruled: “The Constitution, on its face, 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.”
Our 44th president will long be remembered for preserving the recess-appointment prerogative for all future presidents — both Republican and Democratic.
More immediately, the commissions serve as reminders of how efficient the recess-appointment method can be. Sign the commissions, immediately putting the officials to work in positions that have the same authority as confirmed posts and that last up to 24 months. More than 300 jurists have risen to the bench by recess commission, including 12 to the Supreme Court. Most have been subsequently confirmed with life tenure.
Perhaps Obama will consider “regularizing” recess signing as he continues to fight appointment obstruction. Obama should certainly use both the bully pulpit and the campaign stump to demand fulsome reform of the broken Senate confirmation process and timely advisory consent votes for all his nominees.
Victor Williams is a clinical assistant professor at Catholic University of America Columbus School of Law. Nicola Sanchez is an attorney with the U.S. Nuclear Regulatory Commission. The views expressed are the authors’ alone and do not reflect those of the NRC or the federal government.