Still wrestling with the weightiest decisions of its current session, the Supreme Court is likely to accept Monday what could be the most important case of its next one: a colossal power struggle between the White House and Congress over government appointments.
President Obama and Senate Republicans set the stage for the showdown during the past 2½ years as they fought over Obama’s proposed nominations to a little-known federal agency, the National Labor Relations Board. That battle is a microcosm of the broader war over the nomination and confirmation process — one that dates back over several presidencies.
The story line is simple: Obama’s nominees were blocked by Republicans, just as many of President George W. Bush’s choices were blocked by Democrats. So in January 2012 — with the Senate meeting every three days in pro-forma sessions but not conducting any business — Obama used the Constitution’s “recess appointments” clause to install them without Senate approval.
So the DC circuit decided that recess appointments are only allowed between sessions of congress, not during intersession recesses. Scott Lemieux:
The opinion is an atrocity, classic “hack originalism for dummies,” relying heavily on the fact that recess appointments during nominal sessions of the Senate are a relatively recent phenomenon (although there’s precedent going back to 1867, and “[t]he last five Presidents have all made appointments during intrasession recesses of fourteen days or fewer”), without considering that the Senate systematically refusing to consider presidential nominees is also a contemporary phenomenon. The “pro forma” sessions the D.C. Circuit sees as breaking the constitutional “Recess” are intended solely to prevent the president from exercising the recess appointment power, the very check that the framers included to counteract the possibility that the Senate would obstruct the functioning of government by serially refusing to consider nominees. Separation of powers analysis that refuses to acknowledge how the government actually functions provides a clinic in the limitations of law-office history.
But while they were at it, they also reversed a decision that’s been in effect since 1823. So much for stare decisis. But then I guess David Sentelle probably knows the intent of the founders better than the court of that era, so that makes sense.
By using recess appointments President Obama got around the Senate and appointed three people to the National Labor Relations Board. The U.S. Court of Appeals for the D.C. Circuit says that the President violated the Constitution when he did that. From the article: “…GOP lawmakers gaveled in for a few minutes every three days just to prevent Obama from making recess appointments. The White House argued that the pro forma sessions — some lasting less than a minute — were a sham.” Read the article: news.yahoo.com
Obstructionist GOP trying to block appointments indefinitely. It’s definitely past time for filibuster and other senate reforms.
Republicans and business groups told a federal appeals court Wednesday that President Barack Obama violated the Constitution earlier this year when he bypassed the Senate to fill vacancies in his administration.
Attorneys for the groups told a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that Obama abused his power in January when he made recess appointments to the National Labor Relations Board.
“I would suggest there is a huge cloud hanging over the National Labor Relations Board right now,” said Noel Francisco, attorney for the U.S. Chamber of Commerce and other groups challenging the action.
The case is an important test of presidential power and could determine whether the Senate can indefinitely block presidential appointments by refusing to adjourn. Senate Minority Leader Mitch McConnell of Kentucky came to watch the hearing in a packed courtroom. McConnell and 46 other Senate Republicans filed a friend-of-the-court brief arguing the appointments are invalid.
At issue: When is the Senate in session, when is it in recess and who gets to decide? Certain high-profile appointments must be confirmed by the Senate, but if lawmakers are away for the holidays or other breaks, the president can act on his own with a recess appointment.
DOJ Legal Opinion Backs Obama’s Recess Appointment Power During ‘Pro Forma’ Sessions - News - ABA Journal
The president has the authority to make recess appointments during “pro forma” Senate sessions, according to a Justice Department legal opinion released today.
The opinion is dated Jan. 6, two days after President Obama made four controversial recess appointments—that of Richard Cordray to head the new Consumer Financial Protection Agency and three appointees to the National Labor Relations Board. Critics had claimed the appointments were unconstitutional because Senate Republicans had held short sessions over the holidays, establishing that Congress was not in recess.
Text of the opinion (requires Acrobat Reader)
ALMOST everyone agrees about one thing these days: Congress is malfunctioning. To help our representatives escape from their current morass, I suggest that they read “An Essay on Bargaining,” the classic 1956 article by Thomas Schelling, the Nobel laureate economist. It is profound, and it doesn’t contain a single equation.
The article’s primary theme is that the key to success in many bargaining situations is the ability to commit to a future course of action. In this analysis, the Senate “won” the payroll tax cut showdown late last year by passing a bill and then going home for the holidays. This was a highly credible “take it or leave it” offer.
This ability to commit can help solve games in which the two players must choose between strategies: either they cooperate or they “defect,” as a decision not to cooperate is called in the literature. They are much better off if they both cooperate, but there is always a temptation to defect when the other player cooperates, scoring a big win at the other player’s expense.
When this game is played repeatedly, a natural — and often successful — strategy is called tit for tat. You begin by cooperating, hoping for the best. If the other side cooperates, too, all is good. But if it defects, you retaliate. And once the retaliating starts, it is hard to stop.
When I asked a former Republican senate staff member to explain why so many qualified Obama administration nominees were being denied confirmation hearings, he told me, “We are tatting.”
Last year has to be one of the worst episodes of senatorial tatting in history. Extraordinary nominees like Peter A. Diamond, the Nobel laureate economist who was nominated twice to the Federal Reserve Board of Governors, and Dr. Donald M. Berwick, a leading authority on evidence-based medicine, nominated to head Medicare and Medicaid, never got an up-or-down vote. (Dr. Berwick served for a while after receiving a recess appointment.)
Turning down such experts’ offers to help is like declining an offer from Phil Jackson to help coach your high school’s basketball team.
Even more worrisome was the failure to confirm Richard Cordray, a former Ohio attorney general, to the Consumer Finance Protection Bureau. In this case, many Senate Republicans did not deny that he was qualified; they said they just didn’t like the agency and refused to confirm anyone to run it. The president has responded by making an unusual type of recess appointment of Mr. Cordray. Republicans are furious because they thought they had blocked such a move by holding “pro forma” sessions, in which the sole business conducted was to adjourn for a few days. Expect each side to argue that the other is behaving unreasonably.
Perhaps the refusal to confirm Mr. Cordray was simply follow-through on the publicly stated goal of Senator Mitch McConnell, the Republican minority leader, to assure that President Obama is a one-term president.
But I have a question for Senator McConnell: If you achieve your goal and a Republican is elected president. what will happen then? Won’t Senate Democrats take it up a notch? If they don’t like the new president’s foreign policy, for example, they could refuse to confirm a secretary of defense, citing the Cordray case as a precedent, and leading to either more recess appointments or 24/7 sessions for the Senate.
Today Obama is set to confirm Richard Corday as the head of the Consumer Financial Protection Bureau, despite current GOP procedural nonsense intended to prevent the senate from actually going into a recess.
Here’s the official statement from the White House:
Today the President will appoint Richard Cordray to lead the Consumer Financial Protection Bureau. He has one important job: look out for the best interest of American consumers. He’ll work on behalf of millions of families across the nation to ensure they’re not being taken advantage of by debt collectors and credit reporting agencies. As America’s consumer watchdog, Cordray will work to ensure that families and students don’t get saddled with sky-high interest rates by mortgage or payday lenders. Bottom line: he’ll strengthen oversight and accountability in order to protect millions of families across the nation. This is an important step to protect the American people.
The President nominated Mr. Cordray last summer. Unfortunately, Republicans in the Senate blocked his confirmation. They refused to let the Senate go forward with an up or down vote. It’s not because Republicans think Cordray isn’t qualified for the job, they simply believe that the American public doesn’t need a watchdog at all. Well, we disagree.
And we can’t wait for Republicans in the Senate to act. Now, you might hear some folks across the aisle criticize this ‘recess appointment.’ It’s probably the same folks who don’t think we need a tough consumer watchdog in the first place. Those critics might tell you that Wall Street should write their own rules. Or you might hear them say the American people are better off when everyone is left to fend for themselves. Again, we disagree with those critics.
Here are the facts: The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised. The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks. In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called ‘pro forma’ sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running. Legal experts agree. In fact, the lawyers who advised President Bush on recess appointments wrote that the Senate cannot use sham ‘pro forma’ sessions to prevent the President from exercising a constitutional power.
Because of the President’s leadership and decisive action, the American people will have a consumer watchdog fighting tooth and nail on their behalf. The President knows this is a make or break moment for the middle class and he’ll continue to build an economy that’s based on the values of fairness and shared responsibility. Today’s announcement is a critical piece to strengthen the economy and restore the economic security for the middle class and those trying to reach it. Mr. Cordray is the right man for the job and we’re pleased he’s finally in place to continue his important work.
Republicans have so far prevented Obama from making recess appointments by pretending not to be in recess, holding sessions lasting only minutes during vacations.
Is it still possible, against this procedural opposition, for the nation’s chief executive to make appointments?
…there are at least three options that the president could use if he wants to move ahead anyway, all of which appear to be legal and Constitutional, although no doubt he’d provoke a controversy if he used any of them. Of course, as I’m going to say over at Greg’s place later, the real controversy is the current GOP use of the filibuster…at any rate, here are his options:
1. Make a recess appointment during a short recess. The three-day minimum for a recess to “count” for purposes of recess appointments is based on an old Justice Department legal opinion; it’s not clear whether that opinion would hold for House-enforced non-recess recesses, and at any rate it is not binding. Presidents shouldn’t ignore Justice Department legal opinions without good reason, but in my view there is ample reason to do so here.
2. Invoke the Article II power of the president to resolve differences between the House and Senate over recesses in the Senate’s favor. This appears to be an untested and unused presidential power, but the plain meaning of the text seem to support a potential presidential role, either for intrasession recesses or, as would be the case now, for end of session adjournment.
3. Wait until between the 1st and 2nd sessions of the 112th Congress, which will be no later than the first week of January. There’s precedent for making recess appointments during that window, no matter how small the duration.
So if Obama really wants recess appointments, and is willing to live through whatever fuss will be made over accusations of procedural infractions, he can almost certainly get his nominees through that way.