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.