Sally Katzen is a visiting professor at New York University Law School and formerly deputy director for management at the Office of Management and Budget.
With its recent ruling on recess appointments, the U.S. Court of Appeals for the District of Columbia Circuit dramatically limited the president’s ability to fill vacancies in government. Having served in various positions as a senior political appointee in the executive branch — both confirmed by the Senate and through a recess appointment — I believe last month’s decision is unfortunate and will make it even more difficult for our leaders to carry out their constitutional obligations.
The D.C. Circuit concluded that the Framers did not intend for the Constitution’s recess appointments clause to be used — as presidents have for more than a century — to fill existing vacancies in the long breaks that occur during a session, as opposed to breaks between sessions. Whatever the merits of that analysis — and three appellate courts have seen it differently in the past 50 years — the court’s inquiry should not have stopped there. As President Obama highlighted just four days earlier in his inaugural address: “we continue a never-ending journey to bridge the meaning of [the Constitution’s] words with the realities of our time.” One reality relevant here is the increased use, or threatened use, of the filibuster.
The fundamental principle underlying the recess appointments clause is that the president must be able to fulfill his constitutional duty to “take care that the laws be faithfully executed,” even when the Senate is unable to advise and consent to his appointments. In the early years of the republic, when travel was difficult, senators came to Washington and stayed until their work was done. When they returned home at the end of each session, the recess appointments clause ensured that the president could keep the government running during the six to nine months before the next session.
In modern times, as it has become easier for senators to travel home for holidays or “home work periods,” the sessions have been extended to accommodate the long breaks within them. But now, even when the senators are present, they are often unable to discharge their responsibilities because of a legislative invention unforeseen by the Founders: the use of a procedural device employed by a minority to prevent or delay a vote by the majority.
The filibuster did not exist in 1789. It was first used in the 1830s and, for the next century, was used infrequently — and rarely to block confirmation of executive-branch personnel. Today, however, the filibuster is applied to virtually all Senate business, including the confirmation of executive-branch nominees.
As a result, critical executive-branch positions remain vacant while qualified nominees wait months — or years — for an up-or-down vote. Meanwhile, “acting” officials are left to try to manage and implement essential national functions without the democratic legitimacy of a presidential nomination. This is exactly what the recess appointments clause was meant to prevent. As a 1905 Senate Judiciary Committee Report stated: The clause’s “sole purpose was to render it certain that at all times there should be, whether the Senate was in session or not, an officer for every office, entitled to discharge the duties thereof.”
There are serious consequences when a minority of the Senate holds hostage entire agencies. In early 2009, in the midst of the financial crisis, the Financial Times quipped that Treasury Secretary Timothy Geithner was “home alone” because of the department’s lack of Senate-confirmed officials in high-ranking policy positions. It took six months after the attempted bombing of an airliner on Christmas Day 2009 for the head of the Transportation Security Administration to be confirmed — because of a hold placed on the nomination by one senator.
In response to the increased use of the filibuster to block confirmation of executive-branch personnel, recent presidents have resorted to greater use of recess appointments. Presidents George W. Bush and Bill Clinton exercised that authority 171 and 139 times, respectively; President Obama has done it 32 times. Over the years, the Senate has acquiesced to this practice. The D.C. Circuit panel, however, looked not to recent history but instead to the infrequent use of intrasession appointments during the first 150 years of the republic to suggest “an assumed absence of [the] power to make such appointments.” But given the infrequent use of the filibuster during those early years, it is more likely that the infrequency of such appointments reflected an absence of need.
The increase in intrasession recess appointments fairly tracks the increased use of the filibuster, which makes it surprising that the D.C. Circuit did not mention the filibuster and surprising that the court did not define the situation for what it is: a conflict between the legislature and the president. The use (or abuse) of a procedural device created by the legislature has been met by the expanded use of a constitutional power by the president. This conflict should be resolved by the political branches. At the very least, the courts should not enter the fray to pass on one piece of the dispute without regard to the other pieces of the mosaic.