Recess Appointments Are Awful When the Other Guy Does Them!


The New Yorker's Jeffrey Toobin is aghast that the Supreme Court might rule against President Obama's use of recess-appointments-in-name-only. The court is hearing National Labor Relations Board v. Canning. At issue is whether a president can appoint people to federal agencies absent constitutionally mandated Senate confirmation. As it stands, the president can make appointment if the Senate is in recess and the position needs to be filled.

Back in the days of horses and buggies, the Senate often wasn't around in D.C. However, after getting pissed at George W. Bush's heavy use of recess appointments, Democrats in 2007 came up with a pretty ingenious way of blocking them by technically always staying in session.

As Reason's Damon Root explains:

A member would gavel the Senate into pro forma session every few days in order to prevent it from going into recess over the holidays, thereby denying the president the legal ability to make any more recess appointments. It did the trick. As [New York] Times reporter Charlie Savage put it, "Senate Democrats repeated the move during breaks for the rest of Mr. Bush's presidency, and Mr. Bush did not try to make any further recess appointments."

As it happens, in January 2012, President Obama made four recess appointments, including three to the NLRB, despite the fact that the Senate was technically in session. Hence the court case, which the Obama administration lost at lower levels, now in front of the Supreme Court. 

Toobin's take on the matter?

Since Obama became President, Republicans in the Senate have engaged in unprecedented obstruction of his nominees to these agencies. Worse, Republicans have been able to thwart the President even though they have been in the minority. Filibusters (once extraordinary measures) have become routine in the contemporary Senate, so as few as forty senators can prevent any nominee from coming up for a vote.

You got that? Because Republicans are using a tool first developed and wielded by Democrats, they are engaging in "flagrant obstruction" and keeping the president from exercising "basic responsibilities."

Yeah, or maybe they are trying to influence the types of people who get appointed to federal agencies. Isn't that the way the advise and consent function is supposed to work? The Senate is a place that allows political minorities to exert influence in a way that is absent in the House.

I'm no Republican partisan but it never ceases to amaze me that whenever GOP members "demand" something, they are inevtiably seen as unyielding, rigid, harshly ideological, you name it. But when President Obama or the Democrats explicitly refuse to negotiate or moderate their positions, that's always only because they're forced into such a position by the other side.

Even in the current shutdown, this has been the case. The 2012 elections, don't you see, were a referendum on Obamacare, so when the president said he shouldn't have to negotiate anything with the House, the media totally backed him up on that. Despite the fact that the 2012 elections also returned a Republican majority to the House. Not a single GOP House member had voted for or voiced support for Obamacare. Why wasn't that part of the message of the 2012 elections?

There is quite possibly no bigger bunch of self-righteous windbags than U.S. senators. Consider the hullabaloo earlier this year when Majority Leader Harry Reid (D-Nev.) floated the idea of changing Senate rules to limit, among other things, the extent of filibusters. This was something that he totally was within his right to do. Minority Leader Mitch McConnell (R-Ky.) raised holy hell and talked about the shredding of the Constitution, which was handed down to Moses on Mt. Fuji on clay tablets or something. As Slate's Dave Weigel helpfully pointed out at the time, McConnell and Reid had enacted exactly the same dance in 2005. Except that the roles were reversed.

So it is with the blocking (or support of) recess appointments. If your guy is doing it (or blocking them), then it's great. If your guy is getting screwed, then it's the worst goddamn thing in the world.