Those Recess Appointments

by Nolan McCarty on January 6, 2012 · 17 comments

in Legislative Politics

Almost fifteen years ago, Rose Razaghian and I wrote a paper that examined the underlying causes of increasing delays in the confirmation of executive branch appoints (not surprisingly, partisan polarization was the main culprit).  Recess appointments did not quite fit into our framework as we focused on the time between nomination and Senate confirmation.  Fortunately, at the time, recess appointments were rare enough and for positions insignificant enough that we could ignore them and still publish the paper in a good journal.

I doubt that is the case anymore.  Recess appointments are increasingly common and are used for much higher level positions.  If one were to update the work I did with Razaghian, no self-respecting editor would let the authors treat recess appointments as glibly as we did.

As things have evolved over the past fifteen years, there is nothing unusual in that President Obama used the power to make recess appointments to seat Richard Cordray as head of the Consumer Financial Protection Board (CFPB) and three commissioners on the National Labor Relations Board (NLRB).  But his expansive interpretation of the recess appointment power does break some new ground.

On provisions of the Constitution that were little debated, interpreting intent is always a little bit tricky.  But the most credible interpretation is that the founder’s inserted the clause to deal with the expectation that the Senate would be in session but a few months a year.  Until the 1930s, the Senate would convene in March, confirm appointees until April, and then disappear until November.  Clearly, the president needed some way of fill positions that came about over the summer.  In the dataset I compiled with Razaghian, almost all the recess appointees received their appointments in the summer and were then confirmed in November.   Of course, there were exceptions, and these exceptions are precisely those that presidential legal advisors have used to expand the power by insisting its application to much shorter intra-session recesses.

President Obama’s latest appointments are just the latest manifestation of stretching that power well beyond anything the Founder’s might have imagined.  Indeed, there is a good debate to be had as to whether the Senate is in recess at all.  The Constitution requires the concurrence of both houses for a recess greater than three days.  Anticipating the possibility of recess appointments, the Republican-led House did not allow a recess. Consequently, both chambers gaveled in and immediately gaveled out in order to remain “in session.”  The president’s position is that these procedures were a “scam” since there was never any intention of conducting legislative business.  Perhaps.  But consider the reaction had George Bush declared this procedure a scam and made major recess appointments when it was used against him at the end of his term.

The NLRB appointments raise a few additional issues.  The Cordray appointment was a case where a nominee had gone through a thorough Senate vetting, received a positive committee report, and obtained 53 votes on a cloture motion.  Two of the NLRB nominations were made in the closing days of the last Senate term despite the fact that there has been two openings on the Board since August and the third opening was predestined by an expiration of, yes, a recess appointment.   So the Senate had no opportunity to advise less consent.  The administration position is that the Republicans would have surely obstructed.  But in my mind, there is a huge difference in aggressively using the recess power because the Republicans had obstructed and using because they are expected to obstruct.

Of course, the Senate is not blameless in all of this.  The inability and unwillingness of the chamber to curb its obstructionist excesses have forced presidents to circumvent it wherever possible.  Ironically, while the Democrats were in high dungeon about Republican obstruction, the New York Times reported that Senator Bob Menendez was blocking a well-qualified appeals court nominee because he has a grudge against her husband.  As long as this sort of craziness continues, who can blame a president for seeking an easy way out even if it depends on a tortured interpretation of the Constitution?

The confirmation process is clearly broken (and this is not exactly news).   But there may be a silver lining.  Now that the limitations on the recess appointment power have been whittled away to nothing, it might finally be in interest of the Senate minority to cut a deal that combines curbs on obstruction with the restoration of reasonable limits on the recess appointment.

{ 17 comments }

Jim Johnson January 6, 2012 at 7:31 pm

In all due deference to Nolan, it is not all that clear whose interpretation of the constitution is tortured. Today Laurence Tribe opined in the NY TIMES that Obama’s recess appointments amounted to “a badly needed blow for checks and balances with strong support both from the text and the original purpose of the recess appointment clause.”

http://www.nytimes.com/2012/01/06/opinion/games-and-gimmicks-in-the-senate.html?scp=2&sq=laurence%20tribe&st=cse

Jim Johnson January 6, 2012 at 7:40 pm

Given the quorum rules at the NLRB the anticipated obstruction of Nolan mentions looms pretty large. Given that the red-staters would almost surely not approve Obama’s NLRB appointments they, in effect, would shut the agency down. SO the stakes are reasonably high on this. ANother long period with no regulatory agency at all.

Nolan McCarty January 6, 2012 at 8:44 pm

A couple of responses to Tribe’s argument. As I pointed out in the post, Tribe’s claim that most recess appointments are made without constitutional objections is true. This was because they were precisely those with the intended purpose — filling vacancies while the Senate was on its very long summer break. Most were eventually confirmed. The use of the recess appointment to install controversial nominees is much more modern and far less frequent. Moreover, because of the long recesses, president had plenty of opportunities to use recess appointments to install controversial appointees and they almost never did.

I do not think the Hamilton quote can be construed as an endorsement of the power to circumvent the Senate’s constitutional role in an instance where the Senate could act but chose not to based on its internal procedures.

So these recess appointments may be a needed blow for “checks and balances” (a point I think I made) but I don’t think its consistent with the purpose of the clause and is a major departure from its use up until the last decade (and I gots the data on that).

As for the NLRB appointments, I would have given them the same mild pass I gave the Cordray appointment had the president made the nominations in a timely manner so that they could have received some vetting by the Senate.

Scott Monje January 6, 2012 at 11:07 pm

But what makes a nomination “controversial”? The Republicans appear determined to block any nomination (even the nomination of a Republican in the case of the NLRB so as to preclude a quorum). Are all nominations then controversial?

Nolan McCarty January 7, 2012 at 9:57 am

The Senate confirmations thousands and thousand of appointments a year (including all commissioned military officers). Those that have more than a perfunctory hearing and voice vote are just the tip of the iceberg. So its not true that Republicans are blocking or delaying all nominations. The CFPB and NLRB (e.g. Boeing case) are just very politically salient now.

Jim Johnson January 7, 2012 at 3:47 pm

N olan, the NLRB mater is recurrent. The outgoing mamber Craig Becker was a recess appointment because the minority in the Senate didn’t like him. WHy? Basically he acknowledges the right to organize. And in the red-stater’s mind that is illegitimate. That is why they are trying to shut down the agency by denying the ability to reach a quorom. This is simply the latest round in ongoing obstrucitonism.

Same with Courdray – remember Elizabeth Warren? But it is less about personallities than with teh minority desire to undermine legilation that has been passed by Congress and signed into law. Call it legalistic maneuvering in restraint of legitimate consitutional democracy.

Jim Johnson January 7, 2012 at 3:49 pm

And, no, it is not OK when the Blue-state types pull the same stuff!

Scott Monje January 8, 2012 at 11:34 am

Sorry, I meant all nominations for these particular bodies (although it is not limited to these bodies). Still, I’m not sure that allowing the commissioning and promotion of military officers is really relevant, even if it is technically the same procedure. They’re not out to obstruct the military.

Scott Monje January 8, 2012 at 12:40 pm

Besides, many of the successful confirmations had to scrape sixty votes together. So they’re still being filibustered, just not successfully filibustered. The fact that a deal can be made to get confirmation of the occasional package of nominees shows that things could have been even worse, but it doesn’t disprove a pattern of obstruction and delay.

Steve Smith January 7, 2012 at 11:22 am

I do not see the silver lining. Minority party concessions on cloture reform will not come from the Republicans. Not in this generation. With a Democratic minority, there is a small chance, but it is quite small. More likely, but still quite unlikely to succeed, is that the Senate majority of the 113th will exploit a reform-by-ruling strategy to impose filibuster reform.

On appointments, nothing will happen until the courts act. The legal arguments for allowing the Senate to determine its own rules and agenda are as strong as the president’s arguments–and, besides, the courts might punt on the issue.

We have no way of knowing which party will have a Senate majority and be in the White House a year more from now when the courts finally decide the matter. If it is a Republican Senate majority and a Democratic president, then I can imagine Senate Dems trading concessions on cloture for greater freedom for their president to make recess appointments. But I can’t see the Senate Republicans going along.

Steve Smith January 7, 2012 at 11:42 am

The Senate passed two related measures in June, both backed by Schumer and Alexander, who led the filibuster reform hearings in 2010. The Senate adopted a resolution that provides for expedited consideration of minor executive branch appointments. The Senate also passed a bill that eliminated the confirmation requirement for 169 minor executive branch positions. Schumer had aimed for a much larger number, but he could get Repub support only for a much smaller set (he needed 60 votes, naturally). The House has not acted on the bill. (Keep in mind that legislation that creates new statutory procedures related to recess appointments must be passed by the House, too.)

Nolan McCarty January 8, 2012 at 1:01 pm

Jim: yes, I know the NLRB matter is recurrent. Because its recurrent, the administration knew for for a very long that that that the quorum issue would arise. Yet despite the fact that there have two opening since August and it would have been perfectly permissible to make a nomination prior to the end of Becker’s term, the administration waited until the last minute before making any nominations. Even if we take for granted that the Republicans would have filibustered them, shouldn’t the Senate majority get a chance to vet the nominations as they at least had the opportunity to do with Cordray? Maybe something would turn up that Dems didn’t like.

Steve: I don’t think a deal such as I outlined is probable just possible. Gotta have hope!!!

will January 8, 2012 at 10:45 pm

This didn’t happen under Bush? um, John Bolton?

Cal January 13, 2012 at 11:45 pm

IOKIYAR, apparently.

ChrisB January 9, 2012 at 1:05 am

High dudgeon, not high dungeon (a contradiction in terms) –

A feeling of offense or deep resentment: “the manager walked out in high dudgeon”.

John Griffin January 10, 2012 at 12:58 pm

“The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate”

The text of the constitution suggests to me that the recess power was meant to allow Presidents to fill vacancies that *arise* during a recess. If the vacancy arose prior to the recess and the Senate chose not fill it, I think the President is overstepping to use this window to appoint.

But perhaps this ship has sailed . . .

Cal January 13, 2012 at 11:45 pm

“But consider the reaction had George Bush declared this procedure a scam and made major recess appointments when it was used against him at the end of his term.”

There is no “if” here. Democrats tried a similar trick to prevent Bush from making recess appointments (which, incidentally, he did with far more frequency than Obama has). Bush actually got a ruling from the 11th Circuit Court of Appeals that these “pro forma sessions” were a sham and not legally valid. Also, Article 2 Section 3 says that the president may “may adjourn them [the Houses of Congress] to such Time as he shall think proper”. That would mean Congress is in recess whenever the president says it’s in recess. This isn’t a new power being claimed by Obama, but rather it’s one that the president has possessed for over 223 years.

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