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Federal Eye
Posted at 06:00 AM ET, 01/05/2012

What is a recess appointment?


President Obama shakes hands with Richard Cordray at Shaker Heights High School, in Shaker Heights, Ohio, on Wednesday. (Tony Dejak - Associated Press)
Updated 4:12 p.m. ET

With most of the country preoccupied with the results of the 2012 Iowa caucus (okay, maybe not “most” — but a good slice of Americana), President Obama pulled a fast one on Wednesday and issued four recess appointments.

Eye Opener

The move — no matter what congressional Republicans think of it and plan to do about it — now allows Richard Cordray to begin work as director of the Consumer Financial Protection Bureau, established as part of financial regulatory reforms passed in recent years. Obama also named three new members to the National Labor Relations Board, Sharon Block, Terence Flynn and Richard Griffin despite strong GOP opposition.

The Federal Eye strives to keep the readers informed of the quirks and traditions of Washington, so let’s set aside the politics of the move and focus instead on the nuts and bolts with this brief explanation of recess appointments courtesy of a fantastic Congressional Research Service report on the topic:

What is the purpose of a recess appointment?


George W. Bush installed John R. Bolton as ambassador to the United Nations with a recess appointment in 2005. (Charlie Neibergall)
The Constitution permits the president to “fill up all vacancies that may happen during the recess of the Senate” by granting terms that expire at the end of a Senate session. Most agree that the move may be used to ensure the continuity of government by temporarily filling positions, but presidents also have used the tool to install officials who wouldn’t otherwise earn a Senate confirmation vote. (See: Bolton, John.)

How often have recent presidents made recess appointments?

Bill Clinton made 139 recess appointments, 95 to full-time positions. George W. Bush made 171 recess appointments, 99 of them were for full-time gigs. As of Wednesday, President Obama has made 32 recess appointments, all of them to full-time positions, according to the White House.

How long must the Senate be in recess before a president makes a recess appointment?

Aha! You’ve struck at the crux of the legal arguments sure to be made in the coming days by Republicans as they hammer the White House for making Wednesday’s appointments.

There’s no easy answer to this one: The Constitution doesn’t specify the length of time the Senate needs to be in recess before a president can make an appointment. A 1993 legal brief by the Justice Department implied that the president may make appointments during a recess of more than three days.

The brief drew its conclusions by citing Article I, Section 5, clause 4 of the U.S. Constitution, known as the “adjournments clause.” It states that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”

The brief also stated that:

If the recess here at issue were of three days or less, a closer question would be presented.
The Constitution restricts the Senate’s ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. ... It might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant. …
Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.

The Senate has been meeting in a series of pro-forma sessions, essentially keeping the body “open” even though it’s not formally meeting. With Wednesday’s recess appointments, the Obama White House is essentially declaring those sessions a sham.

The shortest recess during which a presidential appointment has been made in the past 20 years was 10 days, according to CRS.

How long does a recess appointment last?

Recess appointments expire at the end of the Senate’s next session, or when the recess appointee is formally confirmed by the Senate, or when another individual is nominated, confirmed and permanently appointed to the job. For the purposes of Wednesday’s appointments, they can serve until the end of 2013.

Must a recess appointee be nominated to a position as well?

No. Obama nominated Cordray for the CFPB job in July, but hadn’t formally nominated his three picks for the NLRB before appointing them Wednesday. (This is why many reporters didn’t initially believe that Obama would or could make the NLRB appointments.)

Are there legal restraints on a president’s recess appointment power?

Nope. But there are two legal provisions that might restrict the pay of a recess appointee.

In the first case, if a position to which the president makes a recess appointment becomes vacant while the Senate is in session, the appointee may not be paid until he or she earns a Senate confirmation. But — those restrictions don’t apply if the vacancy arose within 30 days of the end of the session, a nomination was pending when the Senate recessed or a nomination was rejected within 30 days of the end of the session and another individual was given the recess appointment. (Tricky details, yes, and ones that the White House usually seeks to avoid.)

Is a recess appointee paid?

Yes, but there may be some restrictions (see above).

Can the president make successive recess appointments to the same position?

Yes.

Can a recess appointment be used to fill federal judgeships?

You betcha, but it’s only happened three times in the last 25 years, according to CRS.

In 2000, Bill Clinton recess appointed Roger L. Gregory to the Fourth Circuit. George W. Bush later renominated Gregory and he later earned confirmation. In 2004, Bush recess appointed Charles W. Pickering to the U.S. Court of Appeals for the Fifth Circuit. He failed to earn a Senate vote and retired. Also in 2004, Bush named William H. Pryor to the Eleventh Circuit Court of Appeals and he was subsequently confirmed by the Senate.

Can Congress prevent recess appointments?


Senate Majority Leader Harry M. Reid (D-Nev.). (Mark Wilson - Getty Images)
They’ve tried. (And Republicans may try again with legal challenges.)

Senate Majority Leader Harry M. Reid (D-Nev.) earns the blame — or credit — for trying to block recess appointments. Starting in Nov. 2007 through the end of Bush’s presidency, he ordered the Senate to meet in pro-forma sessions, or short meetings, over the holidays and traditional summer and spring recesses. No official business was conducted during the brief sessions and the move prevented Bush from making any recess appointments through the end of his presidency.

(Continuing the practice during the Obama years, Sen. Chris Coons (D-Del.) even had to gavel in a 22-second pro-forma session across the street from the U.S. Capitol last summer on the day of the Washington earthquake.)

What do you think of recess appointments? Share your thoughts in the comments section below.

Follow Ed O’Keefe on Twitter: @edatpost

Further reading:

Who is Richard Cordray, and what is he going to do?

Obama also set to make recess appointments to the NLRB

For more, visit PostPolitics and The Fed Page.

By  |  06:00 AM ET, 01/05/2012

Categories:  Eye Opener, Congress, Revolving Door

 
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