Advice and Consent Is Not Optional

The bipartisan abuse of recess appointments flouts the Constitution's checks and balances.

Ed Meese, Ronald Reagan's attorney general, spoke for many Republicans when he called President Obama's 2012 appointment of four federal officials without Senate approval "a breathtaking violation of the separation of powers." But according to a recent federal appeals court decision, abuses like Obama's have been a bipartisan practice in recent decades, with Republicans, including Meese's former boss, more sinning than sinned against.

The Constitution requires the Senate's "advice and consent" for all appointees aside from "inferior officers" whom Congress by law allows the president or a department head to pick on his own. There is one exception: "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."

Obama cited that provision on January 4, 2012, when he appointed the director of the Consumer Financial Protection Bureau and three new members of the National Labor Relations Board (NLRB). The problem was that the Senate, which was briefly convening every three days to prevent just that sort of unilateral action, did not consider itself to be in recess.

Obama said banging a gavel in a nearly empty chamber did not count, since no business was being conducted and almost all senators were absent. The president's critics said it was not his prerogative to decide when the Senate is in recess.

Last week the U.S. Court of Appeals for the 3rd Circuit, in a case involving an NLRB member appointed by Obama in 2010, agreed with those critics and went a step further, saying the Recess Appointment Clause applies only during breaks between sessions of Congress. The 3rd Circuit's reasoning, which mirrors that of the U.S. Court of Appeals for the D.C. Circuit in a January decision addressing Obama's 2012 NLRB appointments, is persuasive.

Written at a time when breaks between congressional sessions lasted six to nine months and when travel and communication between the capital and the states took days or weeks, the Recess Appointment Clause was aimed at preventing important posts from remaining vacant for long stretches of time. The fact that officials appointed during a recess serve until the end of the Senate's following session makes sense in light of that purpose, since by then the Senate would have a chance to approve the president's choice.

The D.C. Circuit (unlike the 3rd Circuit, which said resolving the issue was not necessary to decide the case) also noted what seems plain from the language of the Recess Appointment Clause: The vacancies filled during a recess must "happen during the recess," a requirement that makes Obama's appointments doubly illegitimate. The modern practice of waiting to fill vacancies until the Senate adjourns is plainly designed to evade the Constitution's advice-and-consent rule.

Such shenanigans are a relatively recent development. With the exception of Andrew Johnson, whose controversial appointments played a role in his impeachment, all presidents limited their recess appointments to breaks between sessions until Warren Harding in 1921. Intrasession recess appointments remained fairly rare until the Reagan administration, during which there were 73, followed by 37 under George H.W. Bush, 53 under Bill Clinton, 141 under George W. Bush, and 26 so far under Obama.

While Obama's number is less impressive than those of his Republican predecessors, he has broken new ground by arguing that he can make recess appointments whenever the Senate is not open for business. The implication is that the president can unilaterally appoint officials anytime the Senate adjourns for a holiday break, the weekend, the night, or even lunch.  

Modern presidents have transformed a clause aimed at allowing them to fill posts when the Senate can't approve their choices into a tool for filling posts when the Senate won't approve their choices. Obama's especially brazen use of that tool may ultimately discredit it forever, in which case he will have inadvertently helped restore the checks and balances designed by the Framers. 

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  • Death Rock and Skull||

    Recess appointments should be confirmable or deniable when the recess is over.

  • some guy||

    They should also be immediately suspended when the recess is over. The President shouldn't be able to force Congress to act in this way.

  • DarrenM||

    The Senate needs time to confirm a new appointee. The appointment should end at some standard period of time after the Senate is again in session.

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  • Fist of Etiquette||

    While Obama's number is less impressive than those of his Republican predecessors, he has broken new ground by arguing that he can make recess appointments whenever the Senate is not open for business.

    The next administration will have to top that. One wonders if President Hillary will consider late night appointments legal because Congress is home in bed and not on the Hill.

  • Live Free or Diet||

    I made that exact point to a friend who is a "whatever he does is legal" Obama supporter.

  • Scarecrow Repair||

    Don't give them ideas!

  • John||

    I think the President should get his choice of crooks. Outside of the Supreme Court, this just isn't that important.

  • some guy||

    I disagree. This particular president is a prime example of why Congressional oversight of Executive minions is important. Obama has no idea what's going on in his administration outside the White House. He has given his appointees free reign. It's much harder to hold a President accountable for poorly chosen minions than it is to keep those minions out of office in the first place.

  • creech||

    Maybe in the first term but not in the second. Best way I've found to get the Obamafellators to shudder is to say,
    "Oh, then you'll be fine with recess appointments when President Palin does it?"

  • Loki||

    "Oh, then you'll be fine with recess appointments when President Palin Santorum does it?"

    Use this if you want to make them go catatonic.

  • Sevo||

    John| 5.22.13 @ 7:57AM |#
    ..."Outside of the Supreme Court, this just isn't that important."

    Yeah, that EPA is just a bunch of pussies with pop-guns!

  • DarrenM||

    Outside of the Supreme Court, this just isn't that important.

    Everything is important. It's like dealing with children. They'll just keep pushing and uping the ante to see what they can get away with.

  • President Obama||

    Obama's especially brazen use of that tool may ultimately discredit it forever, in which case he will have inadvertently helped restore the checks and balances designed by the Framers.

    Dammit! Let me be clear: that's an unintended consequence and should therefore be ignored. My intention was to expand executive power in this area. And only intentions matter.

  • WLWReason||

    When the Senate decides to provide their advice and consent (or not), they'll have a better basis on which to complain. Currently, this Senate won't give these nominees the up or down vote they and the country needs to get the work done. If the point is that the minority doesn't like what the agency in question does, they need to find the votes to kill the agency. As it is, the Senate is abdicating their Constitutional responsibility.

    A similar problem exists in appointments to the Federal judiciary, of course.

  • Scarecrow Repair||

    If they don't even allow a vote, that's pretty strong advice and an obvious withholding of consent. What's the problem?

  • LTC(ret) John||

    His TEAM's guys and gals aren't getting in!!!!

    I am sure he bitched most strongly when the Donkeys wouldn't let Booooosh judicial nominees get votes for years.

  • Sevo||

    WLWReason| 5.22.13 @ 10:44AM |#
    "When the Senate decides to provide their advice and consent (or not), they'll have a better basis on which to complain."

    When you learn what words mean, you might have something to say.

  • DarrenM||

    If the Senate does not confirm an appointement to a vacancy before it goes into recess, it has already implicitly chosen *not* to confirm that appointment yet. To allow this kind of recess appointment is to effectively say the President can appoint anyone anytime without confirmation by the Senate. The Senate then has only a right to retract an appoinment that has already been made.

  • Sonderegger||

    Written at a time when breaks between congressional sessions lasted six to nine months and when travel and communication between the capital and the states took days or weeks, the Recess Appointment Clause was aimed at preventing important posts from remaining vacant for long stretches of time. The fact that officials appointed during http://www.schuheladen.com/air-max-1-c-27.html a recess serve until the end of the Senate's following session makes sense in light of that purpose, since by then the Senate would have a chance to approve the president's choice.

    The D.C. Circuit (unlike the 3rd Circuit, which said resolving the issue was not necessary to decide the case) also noted what seems plain from the language of the Recess Appointment Clause: The vacancies filled during a recess must "happen during the recess," a requirement that makes Obama's appointments doubly illegitimate. The modern practice of waiting to fill vacancies until the Senate adjourns is plainly designed to evade the Constitution's advice-and-consent rule.

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