Almost fifteen years ago, Rose Razaghian and I wrote a paper that examined the underlying causes of increasing delays in the confirmation of executive branch appoints (not surprisingly, partisan polarization was the main culprit). Recess appointments did not quite fit into our framework as we focused on the time between nomination and Senate confirmation. Fortunately, at the time, recess appointments were rare enough and for positions insignificant enough that we could ignore them and still publish the paper in a good journal.
I doubt that is the case anymore. Recess appointments are increasingly common and are used for much higher level positions. If one were to update the work I did with Razaghian, no self-respecting editor would let the authors treat recess appointments as glibly as we did.
As things have evolved over the past fifteen years, there is nothing unusual in that President Obama used the power to make recess appointments to seat Richard Cordray as head of the Consumer Financial Protection Board (CFPB) and three commissioners on the National Labor Relations Board (NLRB). But his expansive interpretation of the recess appointment power does break some new ground.
On provisions of the Constitution that were little debated, interpreting intent is always a little bit tricky. But the most credible interpretation is that the founder's inserted the clause to deal with the expectation that the Senate would be in session but a few months a year. Until the 1930s, the Senate would convene in March, confirm appointees until April, and then disappear until November. Clearly, the president needed some way of fill positions that came about over the summer. In the dataset I compiled with Razaghian, almost all the recess appointees received their appointments in the summer and were then confirmed in November. Of course, there were exceptions, and these exceptions are precisely those that presidential legal advisors have used to expand the power by insisting its application to much shorter intra-session recesses.
President Obama's latest appointments are just the latest manifestation of stretching that power well beyond anything the Founder's might have imagined. Indeed, there is a good debate to be had as to whether the Senate is in recess at all. The Constitution requires the concurrence of both houses for a recess greater than three days. Anticipating the possibility of recess appointments, the Republican-led House did not allow a recess. Consequently, both chambers gaveled in and immediately gaveled out in order to remain "in session." The president's position is that these procedures were a "scam" since there was never any intention of conducting legislative business. Perhaps. But consider the reaction had George Bush declared this procedure a scam and made major recess appointments when it was used against him at the end of his term.
The NLRB appointments raise a few additional issues. The Cordray appointment was a case where a nominee had gone through a thorough Senate vetting, received a positive committee report, and obtained 53 votes on a cloture motion. Two of the NLRB nominations were made in the closing days of the last Senate term despite the fact that there has been two openings on the Board since August and the third opening was predestined by an expiration of, yes, a recess appointment. So the Senate had no opportunity to advise less consent. The administration position is that the Republicans would have surely obstructed. But in my mind, there is a huge difference in aggressively using the recess power because the Republicans had obstructed and using because they are expected to obstruct.
Of course, the Senate is not blameless in all of this. The inability and unwillingness of the chamber to curb its obstructionist excesses have forced presidents to circumvent it wherever possible. Ironically, while the Democrats were in high dungeon about Republican obstruction, the New York Times reported that Senator Bob Menendez was blocking a well-qualified appeals court nominee because he has a grudge against her husband. As long as this sort of craziness continues, who can blame a president for seeking an easy way out even if it depends on a tortured interpretation of the Constitution?
The confirmation process is clearly broken (and this is not exactly news). But there may be a silver lining. Now that the limitations on the recess appointment power have been whittled away to nothing, it might finally be in interest of the Senate minority to cut a deal that combines curbs on obstruction with the restoration of reasonable limits on the recess appointment.
