Over the past two decades, the Senate confirmation process has steadily deteriorated from dawdling to dysfunctional to outright broken. The destructive cycle of confirmation obstruction and partisan payback worsened with each presidency. Barack Obama entered the White House seeking to "move beyond" this conflictive pattern. Instead, his nominees suffered vengeful partisan payback for past obstruction of President George W. Bush's appointments. In January 2010, hundreds of important vacancies remained unfilled and only 12 federal judges had been benched.
With prolonged delay as the goal, the variety and intensity of obstructionist procedures substantially increased. Extreme slow-walking, committee hearing defamations, extortion holds, and outright filibusters became the upper chamber's ordinary business. In the 112th Senate, the Republican minority fully embraced appointment obstructionism as a means to accomplish Mitch McConnell's stated priority defeat Obama's reelection. The most recent obstruction escalation amounts to outright nullification a partisan assault against republican governance. Scores of critically important federal posts are purposely kept vacant for months and even years; the government is purposely hobbled.
The Constitution's wise Framers hoped for the best and planned for the worst Article II, Section 2 thus provides two methods of principal officer appointment. In addition to the now-fractured nomination-confirmation process, "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." With a recess appointment, the president simply signs the commission and immediately the official is put to work. Recess commissioned officials carry full power, including judicial authority, for up to 24 months, and then may be consecutively reappointed during another Senate recess.
Partisans now seek to block Obama's recess appointment authority. House and Senate Republicans have joined together to manipulate congressional schedules to hold sham pro-forma sessions. Thus, President Obama is now given a unique opportunity for a fulsome assertion of his appointment authority. He should use the bully pulpit to expose and challenge confirmation obstruction, and he should assertively utilize his recess commissioning authority.
Nullification by Appointment Obstruction
Confirmation obstruction has resulted in systemic damage to a range of executive, regulatory and judicial operations. The vacancies are too numerous to fully report here. Take for example the National Labor Relations Board (NLRB), which again loses its quorum at the end of the year when three of five seats become vacant. Last year, in New Process Steel v. National Labor Relations Board, the Supreme Court voided over 400 NLRB rulings made when the agency last lost a quorum. Similarly, opponents of the Consumer Financial Protection Bureau (CFPB) who were unable to defeat the agency's enabling legislation sabotage its fledgling operations through obstruction. Forty-four Republican Senators preemptively pledged to block appointment of "any" director nominee. Without a director, the CFPB lacks authority to regulate non-bank financial fraud. Additionally, the federal court system has shameful "vacancy emergencies" across the nation due to blocked nominations.
Obama's economic policy nominees have been particularly targeted for confirmation abuse. The Republican members of Congress purposely retard the government's ability to respond to the economic crisis. Two years after Obama successfully fought for Ben Bernanke's reappointment in 2009, two out of the seven Federal Reserve Board seats remain vacant. Peter Diamond's confirmation ordeal including three separate nominations is too typical. Diamond's 2010 Nobel Prize in Economic Sciences only reinforced Senator Richard Shelby's (R-AL) provincial animus against the Massachusetts Institute of Technology professor.
In June 2011, Treasury Secretary Timothy Geithner explained that obstruction creates conditions that could help "bring down" our financial system, making it "less likely that there will be enough capable people in the regulatory bodies to bring the care and judgment necessary for the new rules to work." That Obama personally persuaded Geithner to delay his 2011 plans to leave the Treasury Department highlights the perception that the US Senate could not be trusted to timely confirm a replacement.
Perversely, the systemic damage to the national government serves to encourage rather than deter partisan obstructionists. In December 2011, Senate Republicans further escalated the confirmation battle, including by using formal filibusters to deny Caitlin Halligan an up-or-down vote for a seat on the US Court of Appeals for the District of Columbia Circuit, which had been vacant for six years, and formally blocking Richard Cordray from leading the CFPB. Responding to the most recent "unwarranted and irresponsible" filibuster of Halligan, White House Counsel Kathryn Ruemmler described the Senate as entering "a new age of obstruction." Commentators, such as James Fallows, Thomas Mann, Jonathan Cohn and Steve Benen, analyze the escalating confirmation obstruction as "new nullification." John Calhoun's nineteenth century theory of a dissatisfied minority exercising raw power to invalidate, disrupt or void majority rule is alive and well in the 112th Senate.
Recess Appointment Alternative
For the first three years of escalating confirmation obstruction, administration supporters encouraged Obama to sign recess commissions. From George Washington forward, strong presidents have used the recess power to keep the government fully staffed. Theodore Roosevelt recess commissioned over 160 officials in an en masse signing during a "constructive recess" lasting only seconds between the two sessions of the 58th Senate. Ronald Reagan recess appointed a total of 240 federal officials, George H.W. Bush appointed 74 in one term, Bill Clinton 139 and George W. Bush 171. Obama has thus far signed only 28 recess commissions.
Since Fall 2010, however, obstructionists have manipulated the Senate into holding pro forma sessions, perfunctory sessions in which no business is conducted every three days during breaks in attempts to prevent recess appointments. The scheme relies on a questionable 1993 nonbinding Justice Department memo suggesting that a three-day recess minimum is needed to trigger appointment authority. There is no three-day recess minimum, however. The three-day recess myth is further premised on purposeful misapplication of the three-day congressional adjournment consent requirement of Article I, Section 5: "neither chamber can adjourn for more than three days without the consent of the other." Of course, the Article I chamber comity requirement has no application to the Article II presidential appointment authority. (Then-Senate Minority Leader Harry Reid orchestrated similar sham sessions in 2007 to successfully bluff President George W. Bush out of making recess appointments.)
There is no minimum Senate recess required to trigger the president's appointment authority, however. In the 2004 case of Evans v. Stephens, the US Court of Appeals for the Eleventh Circuit stated explicitly: "The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President's appointment power under the Recess Appointments Clause."
Obama's choice not to immediately push back in 2010 was perhaps perceived as capitulation by congressional opponents. After Republicans took majority of the 112th House in 2011, a group of 77 Republican freshmen pressured House Speaker John Boehner to begin scheduling pro forma sessions in the House withholding Article I, Section 5 adjournment consent to prevent the Senate from recessing. This House manipulation of the upper chamber's business is historic. After the Washington, DC earthquake in August 2011, the Senate met off-site for the sole purpose of sticking to the sham schedule. For the first time since the 1814 British arson, a non-ceremonial session of the US Senate was conducted outside of the Capitol building in order to perpetuate the obstruction. The House has now scheduled all of 2012 to keep itself and the Senate in pro-forma session solely to obstruct recess appointments.
Faithful Execution of the Law/Commission All Officers
John F. Kennedy famously stated in 1963: "Our problems are man-made, therefore they may be solved by man." Knowing well that the government needs the most talented women and men available, President Kennedy adopted an assertive and progressive appointment strategy which included signing recess commissions for over 20 percent of his judicial choices.
In the fourth year of his presidency, Obama needs and deserves a fully staffed government. Article II, Section 3 charges that the Executive "shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States." Obama must expose confirmation obstruction as nullification and actively campaign against it. To clear the growing vacancy backlog and preserve appointment prerogatives for future presidents, Obama must substantially increase and regularize his use of the Article II, Section 2 recess alternative. Concurrent with signing recess commissions, President Obama should renounce congressional "pro forma sessions" with a simple test: If the Senate is not sitting as a deliberative body able to provide timely confirmation consent, the Executive may fill any vacant federal office.
Victor Williams is a Clinical Assistant Professor at Catholic University of America Columbus School of Law. He is also an attorney in Washington, DC. He teaches Law and Economics and Lawyering Skills. Williams has been widely published in numerous legal journals and is a frequent media interview guest, providing evaluation of legal and political issues by print, television, radio and Internet media. He has been an interview guest on CNN, Court TV, Fox News, ABC News, and numerous radio talk programs.
Suggested citation: Victor Williams, Recess Appointments: Challenging Senate Obstruction, JURIST - Forum, Dec. 19, 2011, http://jurist.org/forum/2011/12/victor-williams-recess-appointments.php.
This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at email@example.com