Time for a warning shot on appointments

It’s time for a recess appointment.

I can’t even begin to run through all the reasons Barack Obama and the Senate Democrats are wrong to sit back passively and allow unprecedented GOP obstruction against executive-branch appointments (but Ari Berman has some of the gory details, and Matt Yglesias this morning talked about the vacancies at the Fed, where Obama hasn’t even appointed anyone at this point). Beyond all of that, what’s happening now has reached a new level of creativity on the part of Republicans and (if nothing happens) a new level of timidity by Obama and the Dems.

But if Obama thwarts the Republicans with action – with one recess appointment as a warning, followed by many more if the obstruction doesn’t stop – it would help him with disgruntled Democrats as well as with Republicans who think that he can be easily rolled.

The details? Democrats in the waning days of the George W. Bush presidency blocked recess appointments by refusing to recess the Senate. Instead of leaving, say, for the month of August, they held pro forma sessions every few days. That worked because Bush abided by a Clinton-era policy that the Senate needed to be gone longer than three days to count as an official recess, for the purposes of enabling recess appointments. Since Republicans are in the minority in the Senate, they can’t do that – but instead the House is staying in, and because “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days,” the Senate is stuck with its own pro forma sessions. Thus, no appointments. The Senate would have (apparently) the option under the Constitution of appealing to the president under an Article II provision for cases in which the two Houses disagree about adjournment, but it hasn’t done so yet.

But there’s nothing at all stopping Obama from calling this pro forma non-recess recess a farce, saying that for all practical purposes it’s really a recess (and after all, it certainly is in the sense that the Senate has no intention of working on nominations for the entire month), and appointing someone anyway.

It would be breaking with the precedent established by Clinton and Bush. The White House could argue, however, that Bush’s case was different. It’s one thing, White House officials could say, for a majority of the Senate to block recess appointments. It’s quite another for the House of Representatives – which has no constitutional role in appointments and confirmations at all – to block them. It’s not entirely clear what the courts would do if Obama acted, but he has a fair amount of precedent on his side. I think it’s worth the gamble.

In my view, the president should start with a relatively uncontroversial pick — say, his commerce secretary appointee, John Bryson. And he should make it clear: He’ll continue with more, plenty more, if Republicans continue their unprecedented levels of obstruction.

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