Disarming the White House

Reuters

President Obama announces his renomination of Richard Cordray to head the Consumer Financial Protection Bureau on Jan. 24, 2013.

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  • The tenor of the oral argument suggested widespread skepticism by the justices about recess appointments in general.

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  • The court might rule narrowly, simply outlawing the kinds of recess appointments made by Mr. Obama.

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  • In recent years, presidents have used recess appointments to avoid Senate filibusters.

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Amid the coverage of the Christie controversy and the latest budget deal, it was easy to miss the news about last week’s oral arguments before the Supreme Court in the case of National Labor Relations Board v. Noel Canning. And yet the Canning case represents the biggest threat to presidential power in decades, and the stakes in the decision are extremely high.

The case grew from a challenge by the Noel Canning Corporation to President Obama’s recess appointment of several nominees to the N.L.R.B., along with the head of the Consumer Financial Protection Bureau. Recess appointments are not unusual, but in this case, the Senate was away but still convening pro forma sessions — just five minutes or so at a time — because the House had not given permission to adjourn.

The challenge began narrowly, centered on the question of whether a president or the Senate gets to decide when the legislative body is in recess. But it was broadened dramatically last year by a panel of the Court of Appeals for the District of Columbia Circuit, which ruled that virtually all recess appointments violated the direct language of the Constitution: Only those vacancies occurring during the recess between the two sessions of Congress, and only those filled during that recess, would be allowed. Because such recesses are very brief, the odds of a significant vacancy opening up during them are near zero.

The tenor of the oral argument suggested widespread skepticism by the justices about recess appointments in general, despite their frequent use by presidents for 200 years. The court might rule narrowly, simply outlawing the kinds of recess appointments made by Mr. Obama, leaving intact the accepted practices, and usual tugs of war, that have characterized nomination battles for many decades. But there is a strong chance that the Supreme Court will agree with the D.C. Circuit opinion, in essence erasing the recess appointment authority and capability of the president.

In the short run, this outcome would mean little. In recent years, presidents have used recess appointments to avoid Senate filibusters. But the Senate recently changed its filibuster rules, lowering the threshold for cloture on nominations from 60 to 50 (both the N.L.R.B. and C.F.P.B. slots in question were filled by Senate confirmation). With the new cloture rules, and a Democratic Senate, the president will have little difficulty filling executive and judicial vacancies.

But what happens when we have a president from one party and a Senate majority from the other? The justices, in the oral argument, focused on the “originalist” fact that at the beginning of the republic, recess appointments were intended not to deal with political disputes between president and Senate but to enable presidents to fill positions when there were, as a practical matter, lengthy stretches without a Senate in session to confirm them.

But it is also true that at the beginning of the republic, there were no filibusters, and the Constitution’s framers believed that senators would use the “advise and consent” power only rarely to block nominees, and even then only when senators judged them lacking in qualifications, temperament or ethical standards.

For most of American history, recess appointments were a safety valve for presidents when there were individual disputes over nominees, a modest weapon of the executive in the continuing struggle between the political branches.

The last decade or so, though, has been different. The party not holding the presidency has used the confirmation power not simply to vet presidential nominees but to veto them as a whole, regardless of qualifications, for partisan reasons, or has refused to confirm them in order to nullify laws by nullifying the agencies designated to enforce them.
 
That could be a disaster if that party controlled the Senate, where it could use its power to block nominees from even coming to a vote. In fact, the only thing that would keep a tribal party from acting to utterly foil a president from fulfilling his executive responsibilities would be the awareness that the other party would take its revenge later on.

Our contemporary politics make that kind of restraint unlikely. Without the possibility of a president being able to fall back on recess appointments, the temptation to foil the executive branch’s entire agenda would be too great.

A president takes an oath to faithfully execute the laws; that requires having an executive branch led by presidential appointees. The inability to confirm those nominees would leave any president hamstrung to fill the most basic and core responsibilities of a chief executive.

To be sure, recess appointments are a limited tool, a modest safety valve to ameliorate the worst abuses of Senate power. But they are a necessary one to keep some check and balance in place. There is reason to fear that the Supreme Court will take that tool completely away — and make our dysfunctional politics and policy making much worse.

Norman J. Ornstein, a resident scholar at the American Enterprise Institute, is a co-author of “It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism.”

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Norman J.
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