Obama's Recess Appointment Sparks Showdown

[JoeTheJuggler]

Not according to that document I cited earlier in the thread. Apparently, a recess appointment expires at the end of the Senate’s next session or when an individual (either the recess appointee or someone else) is nominated, confirmed, and permanently appointed to the position, whichever occurs first.

That doesn't seem right to me. It seems to take away a check on executive party. Now if this were tied to the fact that the Senate was given the opportunity to reject an appointee but failed to do so, I have no problem with that failure to act taken as consent for a recess appointment.

 

[Bri]

I am aware of the case some are trying to present, but I have yet to see any substantive support for these assertions.

How about the two sources I've already cited?

Given the oft purported "historic" nature of the Obama "power grab," it seems reasonable that some such profession would be commenting on this, either confirming or denying the state of media fact on the issue.

Recess appointments have indeed been around for a long time. However, the tactic of blocking them apparently has only been around since the Bush presidency, so I don't know how "historic" this move by Obama should be considered (the blocking of recess appointments by Harry Reid was far more "historic"). That said, Bush never went ahead with a recess appointment during the last two years of his presidency when the Senate began regular pro forma sessions to block them. In that regard, Obama is doing something that hasn't been done before.

-Bri

 

[Bri]

That doesn't seem right to me. It seems to take away a check on executive party. Now if this were tied to the fact that the Senate was given the opportunity to reject an appointee but failed to do so, I have no problem with that failure to act taken as consent for a recess appointment.

Nonetheless, those are apparently the rules. The Senate did have the opportunity to reject the appointee in question but failed to do so (the Republicans filibustered and therefore wouldn't allow it to come to a vote).

-Bri

 

[Trakar]

BTW, on recess appointments: the Senate still has the authority to reject the appointee when they come back, don't they? (I believe that's what happened with the first recess appointment ever--the mentally unstable person Washington appointed.)

It's really about shifting the burden of what they're voting on from not letting someone take a job to firing them from that job after they've started. [ETA: Or perhaps more accurately, it's about changing the default status. If they do nothing, consent is assumed.]

Constitutional wording states: "...The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session..."

To remain in effect a recess appointment must be approved by the Senate by the end of the next session of Congress, or the position becomes vacant again; in current practice this means that a recess appointment must be approved by roughly the end of the next calendar year.

 

[JoeTheJuggler]

That said, Bush never went ahead with a recess appointment during the last two years of his presidency when the Senate began regular pro forma sessions to block them. In that regard, Obama is doing something that hasn't been done before.

Unless there is something to the distinction Lefty is making.

I doubt these are particulars that have been explicitly addressed in the rules, so it's probably about how creatively people are willing to interpret rules that might not address these specific points.

And it would require answering the question you raised about whether or not someone with authority did actually stay in D.C. and do the pro forma sessions during the Bush administration. There may be a difference in how those pro forma sessions were done compared to these which gives Obama an out, but I don't claim to know.

 

[JoeTheJuggler]

Nonetheless, those are apparently the rules. The Senate did have the opportunity to reject the appointee in question but failed to do so (the Republicans filibustered and therefore wouldn't allow it to come to a vote).

-Bri

Constitutional wording states: "...The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session..."

To remain in effect a recess appointment must be approved by the Senate by the end of the next session of Congress, or the position becomes vacant again; in current practice this means that a recess appointment must be approved by roughly the end of the next calendar year.

I guess I have less problem with it if we assume that all recess appointments were appointments that had already been offered to the Senate. . .other than actual emergency vacancies (which is all, I think, the Constitution originally envisioned).

Technically speaking, none few if any of these are vacancies that happen during the recess. These are long-standing vacancies.

 

[Bri]

Sounds reasonable (using the president's adjournment power), but I would liken it to the "nuclear" option wrt the filibuster. Once it's invoked (and if allowed to stand) it would effectively do away with pro-forma sessions.

Right, well that's pretty much what everyone is saying about what Obama did. His staff says that he felt that the Consumer Protection Agency was important enough to break with the tradition permanently, and pointed out that if Obama hadn't done it a future president probably would have anyway.

IMO, I'd like to see a rule made that goes to the heart of the matter: recess appointments may be made if and when the Senate has failed to vote on appointments made during session. I think it would serve the public if Senators were made to say "no" to an appointee they disapprove of rather than blocking appointments by inaction. As with the filibuster and these other rules, the policy I suggest would cut both ways (as far as party politics goes).

Essentially, you're saying that the minority shouldn't be allowed to filibuster presidential appointments. I tend to agree. The intent seems to be to allow the president to make appointments, but for Congress to override the choice on (presumably rare) occasions where the majority in Congress disagreed with the president's choice. I don't think the intent was to allow the minority party to block every appointment the president makes in order to stifle the functioning of the government.

-Bri

 

[JoeTheJuggler]

Essentially, you're saying that the minority shouldn't be allowed to filibuster presidential appointments. I tend to agree. The intent seems to be to allow the president to make appointments, but for Congress to override the choice on (presumably rare) occasions where the majority in Congress disagreed with the president's choice. I don't think the intent was to allow the minority party to block every appointment the president makes in order to stifle the functioning of the government.

And I recently read that the threat of the nuclear option (though not in that language, obviously) was overtly meant to be the control on the misuse/overuse of the filibuster even some time ago. Trouble is, the Democrats haven't even been threatening it. Once it's widely known you're not going to actually follow through with it, there is no deterrent effect.

 

[Trakar]

How about the two sources I've already cited?

the Hogue document speaks of a "history" only going back a few years, it isn't clear from reading it that it covers a perspective of history back to the founding of our nation with regards to this issue. The rest of the articles, to my skimming (I don't care about political pundit and reporter subjective opinions about their take on the current situation so much as I am looking for verifiable historic facts.

Recess appointments have indeed been around for a long time. However, the tactic of blocking them apparently has only been around since the Bush presidency, so I don't know how "historic" this move by Obama should be considered (the blocking of recess appointments by Harry Reid was far more "historic")...

Perhaps it wasn't because of pro forma sessions, but you don't think that president's like TR took advantage of a 30 second recess between congressional sessions to make 160 recess appointments on a lark,...do you?

 

[Bri]

And I recently read that the threat of the nuclear option (though not in that language, obviously) was overtly meant to be the control on the misuse/overuse of the filibuster even some time ago. Trouble is, the Democrats haven't even been threatening it. Once it's widely known you're not going to actually follow through with it, there is no deterrent effect.

From what I've read, Obama did his recess appointments without a prior threat (maybe a threat in this case would have worked, but somehow I doubt it). But the recent appointments apparently took everyone by surprise (even the Democrats it sounds like).

-Bri

 

[thaiboxerken]

Finally, the consumer protection agency has teeth now.

 

[Bri]

the Hogue document speaks of a "history" only going back a few years, it isn't clear from reading it that it covers a perspective of history back to the founding of our nation with regards to this issue.

That's just not so. The article mentions occasions when recess appointments were made when Congress had been in recess less than 3 days, including in 1903 and 1949. In addition, the wording of the section about Congress blocking recess appointments is fairly clear that Harry Reid was the first to do it:

The logic of the argument laid out in the Justice Department brief appears to underlie the congressional practices that were first implemented during the 110th Congress.​

Perhaps it wasn't because of pro forma sessions, but you don't think that president's like TR took advantage of a 30 second recess between congressional sessions to make 160 recess appointments on a lark,...do you?

Certainly not. But Harry Reid was apparently the first to specifically block recess appointments using pro forma sessions, which was my point. I agree with your larger point that the hyperbole about Obama's appointments being a historic power-grab is vastly overblown.

-Bri

 

[JoeTheJuggler]

From what I've read, Obama did his recess appointments without a prior threat (maybe a threat in this case would have worked, but somehow I doubt it). But the recent appointments apparently took everyone by surprise (even the Democrats it sounds like).

I suppose Obama could have urged Senate Democrats to make the threat, but Obama himself doesn't have the authority to exercise the "nuclear option". It's up to the Senate to determine these rules.

But anyway, their unwillingness to threaten it and, if the abuse of the filibuster continued, to follow through with it, has effectively removed this check on the abuse of the filibuster. For a long time, I've been opposed to the "nuclear option", but now that there is nothing checking the abuse of the filibuster, I think it's time to do it--or come up with some other complex set of rules that somehow limits its abuse.

I very much like the idea of the minority having a way of blocking something as a measure to be used in relatively rare circumstances, but it's gone far beyond that.

We voters might just have to be more careful who we elect to the Senate if we enter the era of legislation by simple majority.

 

[Trakar]

That's just not so. The article mentions occasions when recess appointments were made when Congress had been in recess less than 3 days, including in 1903 and 1949.

These arein sections talking about recess appointments in general. The pro forma section consists of just a few sentences.

In addition, the wording of the section about Congress blocking recess appointments is fairly clear that Harry Reid was the first to do it:

The logic of the argument laid out in the Justice Department brief appears to underlie the congressional practices that were first implemented during the 110th Congress.​

Again the context and manner make it unclear whether they are referring to the use in accordance with this specific and temporally recent Justice Dept. brief. The ambiguity involved does not satisfy me that it is historically conclusive.

Certainly not. But Harry Reid was apparently the first to specifically block recess appointments using pro forma sessions, which was my point. I agree with your larger point that the hyperbole about Obama's appointments being a historic power-grab is vastly overblown.

-Bri

I suspect, that this may be the case, if pro forma sessions themselves are a modern innovation of Harry Reid, as some sources seem to imply. But that is the specific issue that is not clearly and unambiguously addressed in any compellingly authoritative reference I've seen so far.

 

[Bri]

I suppose Obama could have urged Senate Democrats to make the threat, but Obama himself doesn't have the authority to exercise the "nuclear option". It's up to the Senate to determine these rules.

I wasn't referring to THE nuclear option (i.e. ending the filibuster as we know it). I was referring to the fact that Obama could have threatened to do what he did -- ignore the pro forma sessions and do his recess appointment anyway, essentially ending the practice of using pro forma sessions to block recess appointments (the "nuclear option" of recess appointment blocking, as it were).

I very much like the idea of the minority having a way of blocking something as a measure to be used in relatively rare circumstances, but it's gone far beyond that.

We voters might just have to be more careful who we elect to the Senate if we enter the era of legislation by simple majority.

I agree. I'm very much torn on the filibuster.

-Bri

 

[leftysergeant]

I agree. I'm very much torn on the filibuster.

Maybe the solution is to make McConnell stand there for hours on end making an ass of himself in front of the nation and his constituents explaining why Obama should have appointed somebody else.

 

[Bri]

These arein sections talking about recess appointments in general. The pro forma section consists of just a few sentences.

More than a few sentences, and it's fairly clear that Harry Reid was the first to do it. Until I see an example of a pro forma session having been used to block recess appointments before Harry Reid did it, the two sources I cited are pretty good evidence that he was probably the first.

Again the context and manner make it unclear whether they are referring to the use in accordance with this specific and temporally recent Justice Dept. brief. The ambiguity involved does not satisfy me that it is historically conclusive.

I don't see an ambiguity. Also, footnote 25 clarifies it further:

It appears that this practice was considered, but not implemented, during the 1980s and 1990s. In response to certain recess appointments by President William J. Clinton in 1999, one Republican Senator reportedly stated, “‘What we can do—if they’re appointments that he should not make—is just not go into recess .... We’ll just go into pro forma. You’re in session, theoretically, but there’s no votes’” (Dave Boyer, “Clinton Warned Against Recess Appointments; GOP Senators May Not Adjourn,” Washington Times, November 5, 1999, p. A1). In remarks on the Senate floor, the Senator indicated that a threat of this practice had been part of recess appointment negotiations in 1985 between Senator Robert C. Byrd and President Ronald W. Reagan: “He [Byrd] extracted from him [Reagan] a commitment in writing that he would not make recess appointments and, if it should become necessary because of extraordinary circumstances to make recess appointments, that he would have to give the list to the majority leader ... in sufficient time in advance that they could prepare for it either by agreeing in advance to the confirmation of that appointment or by not going into recess and staying in pro forma so the recess appointments could not take place” (Senator James M. Inhofe, “Recess Appointments,” remarks in the Senate, Congressional Record, vol. 145, part 163 (November 17, 1999), p. 29915).​

The quotes in the footnote don't make sense if the tactic had been used before, and the footnote explicitly states that it was never implemented during the 1980's and 1990's.

Although I've seen plenty of sources that have mentioned Harry Reid's use of pro forma sessions during the Bush administration, none have mentioned any earlier use of it. And two were fairly clear that Harry Reid was the first.

-Bri

 

[SomedayGirl]

Maybe the solution is to make McConnell stand there for hours on end making an ass of himself in front of the nation and his constituents explaining why Obama should have appointed somebody else.

As I understand it, he Rs objection isn't to the nominee. The objection is that once the appointment takes place, the CFPB gains a host of new powers the Rs don't want the agency to have. They were holding the appointment hostage to force a legislative revision of the bureau's statutory reach.

 

[JoeTheJuggler]

As I understand it, he Rs objection isn't to the nominee. The objection is that once the appointment takes place, the CFPB gains a host of new powers the Rs don't want the agency to have. They were holding the appointment hostage to force a legislative revision of the bureau's statutory reach.

Good point. The CFPB is a special issue. This isn't true though of the backlog of federal judge appointees whose approval has been blocked. In the news, I keep hearing about Obama's "recess appointments" (in the plural).

Did he make others besides the head of the CFPB? (ETA: In one article I see that 3 of the appointments were for vacancies on the NLRB.)

 

[Grizzly Adams]

I've seen an interesting point on this controversy and even the White House apparently admits there are problems (although not explicitly). Apparently the brief submitted by the Office of Legal Council on the constitutionality of the appointments states the Senate was/will be out of session from 3 January until 23 January. This is odd, since the Senate's status hasn't changed since 17 December.

Why do they place the cutoff date more than two weeks after pro forma sessions actually began? The answer is simple: the payroll tax holiday extension was passed by the Senate on 23 December. If the Senate really was in recess and unable to conduct business, then the extension was not properly passed and cannot be law.

'T'would appear that either the extension was lawfully passed and the Senate can conduct business (and the appointments were unconstitutional), or the Senate is not able to conduct business and the appointments were valid but the extension was not. It cannot be both.