The Constitution extends some fairly specific powers to the nation’s president, including the ability to make recess appointments. In practice, however, using this power is rather tricky.
In the last Congress, President Obama nominated some qualified officials to serve on the National Labor Relations Board, only to have Senate Republicans block their confirmation votes. When lawmakers left town, the White House said the Congress was in recess, and gave the officials temporary recess appointments. Republicans balked – they weren’t really in recess, they said; they only looked like they were in recess.
A lawsuit ensued and in January, the D.C. Circuit appeals court ruled against the White House. The case has been appealed to the U.S. Supreme Court, and yesterday, literally every Senate Republican urged the high court to hear the case and rule against the president’s tactic.
The Senate GOP conference has asked the Supreme Court to invalidate President Obama’s January 2012 recess appointments as an unconstitutional abuse of power.
All 45 Republican senators on Tuesday signed on to a brief arguing that Obama overstepped his authority in naming members to the National Labor Relations Board (NLRB) while the Senate was technically still in session.
“The president’s decision to circumvent the American people by installing his appointees at a powerful federal agency while the Senate was continuing to hold sessions, and without obtaining the advice and consent of the Senate, is an unprecedented power grab,” Senate GOP Leader Mitch McConnell (Ky.) said in a statement.
On the surface, Senate Republicans raise a perfectly credible argument. I may not agree with them on the politics, but when it comes to the relevant procedures, it’s really not up to the executive branch to decide when the legislative branch is legitimately in session and when it’s not. If Congress says, “Technically, we’re in session,” there’s no reason to think a president has the authority to respond, “I’ve decided you’re not.”
But in this case, there’s a catch.
This gets a little wonky, but I think it’s important so let’s dig in and recap what we discussed in February.
The way the federal confirmation process is supposed to work is simple: when there are judicial and/or administrative vacancies, the president nominates officials to fill those vacancies. The Senate is responsible for scrutinizing the nominees and either approving or rejecting them.
The executive, in theory, has a workaround called recess appointments. In fact, Article II, Sec. 2, of the Constitution 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.” Note that it says, “the recess,” not “a recess.”
Why does the distinction matter? In the early days of the country, framers saw recesses that could last months and wanted presidents to be able to fill key positions temporarily in emergency situations without the Senate’s consent. There’s generally a lengthy break following the final adjournment for the legislative session, and this is generally considered “the recess.” The provision was not about giving presidents the authority to circumvent Congress when the White House felt like it.
As you might imagine, this has long been a point of contention between the branches, with presidents defining “recess” however they saw fit. More than a century ago, Teddy Roosevelt once made recess appointments when the Senate was off for an afternoon.
But in the Obama era, the rules have effectively been rewritten in a ridiculous way. Congressional Republicans have decided they won’t just block nominees through filibusters, making it impossible for some agencies to function at all, but they’ve also decided that there will no longer be any recesses either, so the president’s constitutional power to make recess appointments has effectively been eliminated, too.
How? Through the use of brief, pro-forma sessions – sessions in which the Senate isn’t actually in session, but it’s technically not in recess. Obama’s Justice Department and the Office of Legal Counsel said the president didn’t have to honor the charade and can make recess appointments when the Senate is effectively in a recess.
So far, this argument hasn’t proven persuasive in the courts, and Senate Republicans want the Supreme Court to back them up, ending the practice for the foreseeable future.
But there’s a conflict that needs resolution. On the one hand, Senate Republicans raise a persuasive point: the White House shouldn’t be able to decide when Congress is in recess and use recess appointments to circumvent the confirmation process. On the other hand, the White House raises a persuasive point: a minority of the Senate shouldn’t be able to decide they can shut down federal offices through abuse of filibuster rules, rejecting qualified nominees without so much as a vote.
In other words, the 45 Senate Republicans who filed this brief yesterday with the high court would have a stronger case if the traditional Senate confirmation rules still applied. It’s this context that makes a compelling argument far less effective.