Will President Obama make recess appointments before the second session of the 112th Congress begins? He hinted at it three weeks ago, but there’s been nothing since. Granted, we’re hearing more about turtles these days than about anything else, although vacation didn’t prevent the nomination of two people to serve on the Fed, so there’s at least some related progress.
Still, this is an extremely important story, and it’s worth a reminder of what’s going on, what’s at stake, and what the president’s options are right now.
What’s going on: unprecedented obstruction of executive-branch nominations by Republicans, who, you will recall, are in the minority in the Senate. I’m not going to drag you through all the details again, but basically they are filibustering every nomination by insisting on 60 votes, and successfully blocking many, including blanket refusals to confirm anyone at all in some cases. On top of that, they are attempting (successfully so far) to block the Senate from taking a normal recess in order to prevent Obama from making recess appointments.
What’s at stake: two things. In the first place, presidential influence over the executive branch. Now, I’m the first one to argue that congressional influence over executive-branch agencies is perfectly legitimate, and part of the constitutional system, but until 2009 the idea that the president should not also have at least a fair amount of influence was entirely unheard of. Not now.
But it’s more than that: Blanket refusals to confirm anyone are being used by Republicans — again, a minority in the Senate — to prevent agencies from functioning properly or, in some cases, at all. The poster children? The National Labor Relations Board, which will lose the ability to enforce labor law if no recess appointment is made by early January, and the Consumer Financial Protection Bureau, which cannot fully exercise its authority without a presidential appointee heading it up. Put it together, and you get what some academic observers and longtime journalists are calling a form of “nullification.”
The president’s options: Obama could declare the current situation, in which the Senate is out of town for an extended period but is holding pro forma sessions every few days, a “recess” sufficient to fulfill the constitutional requirement for a recess appointment. Or, at the request of the Senate, he could use his Article II powers to force a recess and then make appointments. Or, he could use the space between the first and second sessions of the current Congress, no matter how short, to make recess appointments. In my view, each of these would be a far more legitimate reading of the Constitution and precedent than the current, unprecedented obstruction by the Republicans. It is also possible that he could negotiate with Senate Republicans, using the threat of unilateral action as leverage.
The downside to all this is that Republicans might become even less cooperative with confirming appointments than they have been so far. That’s not a crazy thought (after all, at least some judges were confirmed this year even though there are “only” 53 Democrats in the Senate), but on balance it sure seems to me that it’s a small risk, given how hard Republicans have worked to find new ways of blocking appointments.
Again: I keep banging on this because it’s of major, major importance. Remember all the news coverage, for example, of Dodd-Frank as it was working its way through Congress? That was important, but how and even whether it is implemented is at least as important, and whether the relevant agencies are fully staffed is a key factor in implementation. Anyone interested in the ability of the U.S. government to function effectively should be paying attention to this story right now and watching to see whether Obama will act forcefully to resolve it.