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December 08, 2011 3:05 PM Are recess appointments still possible?

By Steve Benen

President Obama, not surprisingly, was not at all pleased with Senate Republicans blocking a vote on Richard Cordray’s CFPB nomination this morning, and he told White House reporters, “We are not giving up on this; we’ll keep on going at it.”

Asked specifically about the possibility of a recess appointment, Obama added, “I will not take any options off the table when it comes to getting Richard Cordray in as director of the Consumer Finance Protection Board.”

At this point, the natural next question is, “How can there be recess appointments if there are no recesses?”

Congressional Republicans, hoping to prevent the president from filling key government posts with qualified officials, decided earlier this year to simply end recesses, mandating pro-forma sessions every third day that would prevent vacancies from being filled. Indeed, as far as GOP leaders are concerned, they intend to keep this going for the indefinite future, even if Obama gets a second term.

And with this in mind, what difference does it make if the president isn’t willing to take a recess appointment “off the table”? Well, as Jonathan Bernstein explained, there may be more alternatives than appear at first blush. In fact, as Bernstein sees it, Obama has three 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.

It’s worth noting that the non-partisan Congressional Research Service produced a report on this in March, and concluded that a White House is not required to honor the pro-forma sessions when considering recess appointments. In one instance, Teddy Roosevelt “once made recess appointments during an intersession recess of less than one day.”

In case this isn’t obvious, if Obama made such a move, the political blowback would be extraordinary, but given the extremism of Republican obstructionism, and the suddenly-routine GOP abuses of the political process, the president would be well justified in concluding the Senate didn’t give him much of a choice.

This is especially true in light of the circumstances surrounding Cordray — an overwhelmingly qualified nominee who’s been approved by the relevant committee, who enjoys bipartisan support, who would easily be confirmed if his nomination were given an up-or-down vote, and whose agency cannot function until he takes the reins.

Also note, while senators generally don’t like recess appointments, Obama would have Democratic support were he to pursue this. Consider these remarks yesterday today from Sen. Chuck Schumer (D-N.Y.):

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.

Comments

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  • Quaker in a Basement on December 08, 2011 3:13 PM:

    Republicans are blocking the nomination NOT because they object to the candidate, but because they don't like the job the agency is legally charged to perform. They are openly obstructing the functioning of government.

    Why this isn't a scandal is beyond me.

  • Tomm Undergod on December 08, 2011 3:15 PM:

    While he's at it, he shd appoint all of his nominees, including (if they are willing), the ones who gave up because of the delays. Also, too-- can he appoint judges?

  • stormskies on December 08, 2011 3:15 PM:

    Obama should go for it and, when he does, stick his middle finger in the air at these Repiglicans .. 'no options off the table' .......indeed

  • Redshift on December 08, 2011 3:17 PM:

    In case this isnít obvious, if Obama made such a move, the political blowback would be extraordinary...

    And what exactly would that look like against the background of their current obstructionism? Republicans are already blocking everything and whining bitterly if anyone even says anything unpleasant about it; what more could they do that would even register, much less look "extraordinary"?

    "Extraordinary blowback" on top of what they're already doing would be like a camera flash on a sunny day.

  • golack on December 08, 2011 3:22 PM:

    Bush can make a "recess" appointment for an individual who was voted down--not filibustered, but full on debate and actually rejected--and that's ok, but Obama is not allowed to have his candidates even brought up for a vote and is not "allowed" to make any appointments???? Everyone who is out of committee needs to be appointed during the next recess--let the whining begin...

  • just bill on December 08, 2011 3:25 PM:

    well, if he's going to cause a stink with his recess appointment, i suggest he shoot for the moon and appoint every single nominee that is being held up - thousands of them.

    yeah, and the middle finger idea sounds good to me too. :)

  • brent on December 08, 2011 3:32 PM:

    I generally think its a bad idea to set precedents that expand presidential power, especially in ways that will certainly be abused by Republican Presidents. But at this point, is there any doubt that any Republican would hesitate to support even the most extreme power grab if it came from their own party? Citing John Yoo, if President Romney decided that he needed to crush the testicles of a small child, would any Republican anywhere actually object? My guess is no. I think the GOP has amply demonstrated that they no longer have any interest in the Separation of Powers, and while it will certainly lead us to very bad places, we can no longer pretend that we are still playing by the own rules. Those days are gone.

    As far as I am concerned Obama can either use of one of the tricks you mention or none at all and start cutting the guy a check for his salary and dare the congress to impeach. I really started feeling that way during the debt ceiling nonsense and now I am just about past caring about these guys and their enumerated powers. Republican assholism are killing us. It needs to stop.

  • RepublicanPointOfView on December 08, 2011 3:34 PM:

    It is imperative that OUR republican politicians do EVERYTHING possible to block any level of functionality at the Consumer Finance Protection Board.

    This board has the goal of protecting consumers against the interests of corporations and the wealthy and is thus obviously anti-Amerikan. If OUR republicans and OUR democrats do not stop this board from becoming any form of reality, then we we buy ourselves a new set of republican and democrat politicians!

  • chopin on December 08, 2011 3:48 PM:

    Maybe Obama should use the strong-arm tactics the right seems so giddy about when used against OWS camps. Bring in the marines and announce the capital building is closed for extermination and arrest any congress critter that attempts to camp out. Then Obama can go on TeeVee and announce a state of emergency with respect to government vacancies and recess appoint everyone in the pipeline. If only.....

  • Rick Massimo on December 08, 2011 3:50 PM:

    Redshift has it exactly right. This is a perfect example of Beltway concerns.

    Republicans will scream on Fox News. They already do. They don't need a reason; they make it up. (Farm dust, anyone?) Tiger Beat, Potomac Edition (aka Politico) will dutifully quote Republicans wailing. The America-haters on the Washington Post editorial page will complain.

    The other 99.9999999myninekeybroke% of the country will have one of two reactions: #1) "Richard who? The Consumer Protection what?" #2) "Huh. Guess that Obama guy's got some balls after all."

  • zeitgeist on December 08, 2011 3:52 PM:

    lessons from the Dubya administration:

    just do it. do it until someone stops you. which the dysfunctional congress wont. the distracted citizens wont. and the court doesn't entertain 'political questions.' so just do it, and see if you get away with it. odds are good that you will.

  • SteveT on December 08, 2011 3:52 PM:

    Obama can try one of the suggested alternatives for making recess appointments, but I'd bet my house that the Republican Supreme Court would find it unconstitutional.

    Of course just like in Bush v. Gore, the majority will insist that "Our consideration is limited to the present circumstances . . . " -- i.e. it only applies when a Democratic president does it.

  • PB on December 08, 2011 3:55 PM:

    There may be blowback, but it will be of a good kind. I think people in general will admire a president with the cojones to stand up to obstructionism. Nothing succeeds like success.

  • jjm on December 08, 2011 3:58 PM:

    I do hope Obama chooses this route. Then when he is re-elected and has Dem majorities back in Congress, he can make this permanent -- and bring Don Berwick, Peter Diamond, Dawn Johnsen et al back. (I wish!)

    As for @SteveT's worry that the Supreme Court would find it illegal...that would take some time, no? And seriously, the Court is going to make upholding the filibuster a constitutional question?

    But then Mitch McConnell think that winning elections with popular votes is anti-American and Alan West is saying that the values of fairness and equality are anti-American. There's no limit to the idiocy and self-protection of the super rich in this country.

  • T2 on December 08, 2011 3:59 PM:

    the GOPers are goading Obama into some kind of recess appointment...and they'll be thrilled if he does it. Yes the blowback by GOPers and their Media cohorts will be off the charts.....but they are off the charts on everything anyway. Face it, Obama is being stonewalled on everything he does and anyone thinking a second term will be different is dreaming. Sooner or later, hardball will need to be played, and won. The only way to end it will be either 60 Dem Senators or a Dem House majority. Prospects for either of those are long shots. So basically its up to the president to take action, and screw the GOPers.

  • troglodyte on December 08, 2011 4:01 PM:

    What PB said!

  • square1 on December 08, 2011 4:01 PM:

    God, this is how our political system becomes so fucked.

    The point of recess appointments is to make temporary appointments when Congress is not available to act. Redefining a recess to include a nanosecond when Congress is adjourned completely violates the spirit of the law. I don't care if you can find examples going back to Teddy Roosevelt. It is still wrong.

    This is all a big joke. It isn't necessary to recess appointment Richard Cordray. The CFPB is up and running, temporarily with a Special Advisor hand-picked by Obama and Geithner. The Treasury Secretary has full authority to run the CFPB until a director is confirmed. Either stick with the current Special Advisor, or name Cordray Special Advisor until Cordray is confirmed. The GOP doesn't want an up or down vote? Fine. Tell the GOP that they can go fuck themselves and Cordray will be running the show until they change their minds. Why is this even an issue?

  • RT on December 08, 2011 4:39 PM:

    I like the idea of recess-appointing every position in the backlog. Then, after they squeal like stuck pigs, make the GOP Senators explain to the country why they blocked so many.

  • Hedda Peraz on December 08, 2011 4:40 PM:

    Oh, puh-leeese!
    Just call G W Bush, and ask to borrow his balls for a moment!

  • joejoejoe on December 08, 2011 4:59 PM:

    President Obama is the one blamed for government dysfunction, that is the only real blowback. Making recess appointments, something almost no voters know or care about, would have no blowback. As you mention, there is precedent for the move. Blowhards would talk about it plenty but if the people saw results from having good people in place, the only consequence would be a higher opinion of government.

  • fostert on December 08, 2011 6:02 PM:

    I fail to see what the problem is. All Obama needs to do is just say all these agencies will be headed by the highest ranking person not needing Congressional approval and be done with it. Let the Cabinet positions go unfilled and invite the de facto leaders to Cabinet meetings. There is no practical reason why the janitor can't actually run an agency.

  • Doug on December 08, 2011 7:46 PM:

    Article II, Section 3: "...he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper..."
    That seems to be a rather weak reed, to me.
    Personally, I like the idea of using the highest ranking non-Senate approved individual in which ever Department/Commission/whatever as the de facto head. Are there no capable "assistants"?
    Judges, of course, are a different kettle of fish...

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