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  • Writer's pictureMarc Johnson

Assessing the Recess

Constitutional Crisis or Political Gamesmanship?

Republicans and many conservative legal authorities are outraged by President Obama’s recent recess appointments to install Richard Cordray at the new Consumer Financial Protection Bureau and fill three vacancies on the National Labor Relations Board. Congressional Republicans and their allies say Obama has acted unconstitutionally with the appointments since the Senate, which constitutionally has the power to advise and consent on presidential appoinments, has now suffered an Obama end run.

Conservative legal expert John Yoo, author of the legal analysis allowing President George W. Bush to employ “advanced interrogation methods,” and now a University of California law professor, speaks for most Republicans when he says, “Some think me a zealous advocate of executive power, and often I am when it comes to national security issues. But I think President Obama has exceeded his powers” by making the Cordray appointment. 

Congressional Democrats and the White House contend the president acted within his Constitutional powers since the Senate was “functionally” in recess and only meeting on the most perfunctory basis – sessions every three days that often last for less than a minute – and therefore unable to consider and pass judgment on his nominees. The issue seems certain to end up being decided by the third branch, the judiciary, in a legal battle that could take years.

Around such obscure details constitutional governments determine how the often sticky gears of governance turn. Both sides in this dispute have good talking points. The administration argues, in essence, that Congress is using a legal gimmick to limit the president’s power to fill vacancies or, put another way, impeding his ability to carry out his sworn duties to execute the laws passed by Congress. Congressional Republicans counter that it is a fundamental power of the Congress to determine when it is in session and when it is not in session. It’s a good constitutional law seminar subject, but the back story is also important.

The recess appointment process was analyzed in the Federalist Papers and is included in the Constitution in the section dealing with presidential power. Here is the language: “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.”

Presidents since George Washington have used the recess appointment power, sometimes controversially, such as when Bush 43 appointed the conservative firebrand and United Nation’s critic John Bolton to be the U.N Ambassador. Bush made 171 recess appointment and Ronald Reagan more than 240. Bill Clinton was no slouch during recess. He made 140 such appointments during his eight years in the White House.

So while Republican National Committee Chairman Rance Preibus can bluster that Obama’s recess appointments are proof of the president’s wanton disregard of the Constitution – “one more chapter in Barack Obama’s trampling of the Constitution” – the real issue a court will likely decide is whether the president has been hampered by Congress from carrying out his duties. Can Congress, in effect, prevent the executive branch from functioning by refusing to act on the appointment of key individuals?

No serious person, including a dyed-in-the-wool Constitutional originalist, would argue that the Founders – Alexander Hamiliton wrote the relevant Federalist Paper – envisioned a Senate that would perpetually stay in session by having one member show up ever three days, gavel the session to order, announce that there was no business and be off to lunch in under 60 seconds.

The Founders clearly established a process that contemplated that any president would have the right – indeed the responsibility – to appoint officers to carry out the work of the government. The balance of power would be ensured by giving the Senate the right – indeed the responsibility – to advise and consent to those appointments.

A key part of the breakdown of the basic workings of our government – proven in many ways, including the abysmal Congressional approval ratings – has been the exercise of raw partisan power in the Senate, and both parties are guilty of this, that prevents even consideration of an appointment when a minority object to the appointee, or in the case of Cordray, objects to the very existence of the agency that he has now been appointed to lead.

It is well documented that Richard Cordray, the former Attorney General of Ohio, is not the real issue with Senate Republicans. They oppose the very idea of a Consumer Financial Protection Bureau or at least many of the details about how the bureau will operate. Still, the agency was created by the passage of legislation that was legally signed into law by the president. The real issue then is the operation of a duly constituted agency of the federal government, not a recess appointment. Smell a whiff of politics in the air?

As Richard H. Thaler, a professor of economics and behavioral science at the University of Chicago, notes in a New York Times essay, the real problem here, and it does threaten if not immediately then eventually a genuine Constitutional crisis, is the inability of our political institutions to make a responsible bargain.

Professor Thaler reminds us that Senate Minority Leader Mitch McConnell said a few months back that his overriding objective running up to the 2012 election was to make Barack Obama a one-term president. A part of that strategy, it seems pretty clear, is to deny the president some of the key personnel he needs to run the government.

Senate Republicans have refused to consider confirmation, for example, of a Nobel Prize winning economist to serve on the Council of Economic Advisers. Donald Berwick, a nationally recognized expert on health care, particularly Medicare and Medicaid, did get a recess appointment from Obama to run the Center for Medicare and Medicaid Services, but recently left when it was clear that he would never get confirmed by the Senate.

Thaler says refusing to make use of such expertise is like saying “no” when Phil Jackson wants to coach your kid’s grade school basketball team.

And the professor has a question for McConnell and, for that matter, Sen. Harry Reid of Nevada who first hatched the “gimmick” of keeping the Senate perpetually in session. Reid’s motive was partisan, too. He intended to thwart George W. Bush’s recess appointments.

“I have a question for Senator McConnell,” Thaler wrote. “If you achieve your goal and a Republican is elected president. what will happen then? Won’t Senate Democrats take it up a notch? If they don’t like the new president’s foreign policy, for example, they could refuse to confirm a secretary of defense, citing the Cordray case as a precedent, and leading to either more recess appointments or 24/7 sessions for the Senate.”

This is no way to run a government. Senate Democrats and Republicans are set on a path of what can only be called a political form of MAD – mutually assured destruction – the nuclear war fighting strategy that assumes no sane person will use the ultimate weapons because they face certain destruction from the other side.

But MADness is precisely what is going on here. Neither side trusts the other, both are willing to stretch and abuse the rules of the Senate (including the filibuster) in order to thwart the other side and, of course, practical government based upon trust and mutual respect breaks down and is replaced by overheated political rhetoric, more dysfunction and gridlock. Little wonder Congressional approval ratings are in the ditch.

Here is a strict reading of the U.S. Constitution: any president is entitled to select his nominees for important governmental posts and the Senate is entitled to “advise and consent” to those nominees. The Constitution is, in essence, the rulebook for running the government and the rulebook does not contemplate that either side will game the system. The Constitution must be implemented in an environment of trust and mutual respect and, if things are to work, one side is not entitled to use gimmicks to thwart the other.

When it comes to recess appointments, both sides are wrong. The responsible path is to give the president – any president – an up or down vote on his nominees unless, in those extremely rare cases, a president appoints a total loser to a government job. Only then will presidents do what they should do, which is to consult widely on important appointments before they are made. The point ought to be bipartisan support for an important nominee.

At the same time, the Senate should seriously re-examine its “advise and consent” role, which requires that individual senators – acting in the broad public interest, not merely partisan political interest – look deeply into the qualifications of nominees and give these folks who put themselves through a public and political ringer in order to serve their country a fair and honest hearing.

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