IN THE WAR between politics-induced gridlock and fair, efficient government, gridlock just won a round.
Conservatives are cheering a ruling Friday from the U.S. Court of Appeals for the District of Columbia Circuit that invalidates three appointments President Obama made to the National Labor Relations Board (NLRB) last year. We doubt they will champion the court’s reasoning the next time intransigence and inefficiency in the Senate prevent a Republican president from staffing the government. Manipulating the appointment process is a betrayal of senatorial duty that both parties have engaged in to gain short-term advantage, and the court’s logic would give them a lot more power to do so.
At issue is the president’s constitutional power to appoint officers of the government temporarily and without Senate confirmation when the chamber is in recess. Presidents of both parties have exercised this authority for decades. President George W. Bush made more than 170 recess appointments in his eight years in the White House.
There is good reason why presidents have used, and Senates have acquiesced to, this procedure. In an era when senators abuse the filibuster, government agencies regularly operate without leadership and federal judgeships often remain unoccupied, both despite qualified nominees. In the case of the NLRB, vacancies rendered the board impotent because it could not achieve a quorum. Harvard law professor Noah Feldman points out that the recess appointment is a counterbalance to the increasing and unreasonable use of the tools of obstruction. Using it, the president can keep the government functioning for a time, but he cannot make his appointments permanent without Senate say-so.
In parsing the constitutional language, though, the court practically read the recess-appointment power out of existence. Recess appointments are allowed only between year-long sessions of Congress, a three-judge panel found, and if Congress declares no recess between those sessions — even if the Senate is dark — then the appointments are invalid. The judges relied on their construal of what the Founders intended the Constitution’s words to mean, but they produced a radical transfer of power from the executive to blocking minorities in the Senate.
If upheld upon further appeal, this reasoning would be disastrous. Hundreds of decisions made by recess appointees would come into legal question, and that’s just the beginning. Members of both parties have proved willing to abuse the nomination process to serve inappropriate political, ideological or parochial ends. Republicans, for example, held up the nomination of Richard Cordray to head the Consumer Financial Protection Bureau not because they regard Mr. Cordray as unqualified but because they dislike the agency he was tapped to head. The D.C. Circuit’s ruling would only encourage such irresponsible hostage-taking. Whichever court hears this case next — it could be the full D.C. Circuit or the Supreme Court — should reject the decision.
If it doesn’t, we can only hope — but we hardly expect — that senators will stop the rank misuse of their chamber’s duty to provide advice on and consent to presidential nominations. If they don’t like the mission or the structure of a federal agency, or if they want to extract a favor from the White House, they should pass legislation, not deny the president his prerogative to appoint qualified men and women to serve.