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Just because the Senate blocks your nomination doesn't mean you can ignore it.
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The Supreme Court today dealt a blow to the president’s recess appointment power, one of the office’s most important Constitutional prerogatives. The court got Article II, Section 2 (the recess appointment clause) right, but the justices could honestly have gone even further in curtailing his power. Given President Obama’s incredible assault on the Senate’s right to decide its own procedures, he’s lucky they didn’t. There’s a right way to appoint officials without the Senate’s approval, and Obama whiffed. I know, because I was a recess appointee myself.
The president is supposed to be able to fill government vacancies when the Senate is out of session, a historical practice from the time when many months elapsed between lawmaking conferences. It was an uneasy and uncertain compromise between the two branches of government, but the Senate traditionally acquiesced when it was in a “reasonable” recess, like the traditional month-long August vacation. When nominations for the executive branch languish, the president is unable to implement his policies through the people he wants.
The problem is that the Senate’s confirmation process, both for executive branch and judicial nominees, had deviated dramatically from what the framers originally intended. Now the Senate often obstructs confirmation votes for partisan reasons. This is terrible for policymaking and no fun for the nominee watching a president’s term slip away while the Senate dawdles.
President George W. Bush nominated me to become U.N. ambassador in March 2005, but nothing happened. So during the August break — when the likes of Barack Obama, Joe Biden and John Kerry were blocking an up-or-down vote on my nomination — Bush made it official by recess appointment.
What Obama did, however, was different. He made the three contested appointments to the National Labor Relations Board while the Senate was holding pro forma sessions once every three days but transacting little business — a well-known Senate tactic to frustrate presidents and block recess appointment. After all, a three-day break is not really a “recess.” Nevertheless, Obama appointed the NLRB members, simply ignoring the Senate and violating the understanding that whatever the “right” length of time is for a legitimate “recess,” three days was too short.
Obama’s characteristic disregard for both the Constitution and common sense was a palpable overreach the court rightly slapped down. The Senate was exercising its legitimate constitutional power to make its own schedule (Article I, Section 5) and continue operating during a regular session. Yes, the point of this was to block recess appointments, but that is the legislative branch’s prerogative. If one branch could decide the prerogatives of the other two — if the Supreme Court allowed Obama to wrench away control of basic decisions of another branch — there would be no limit to further interference. Why, he could then rewrite provisions of federal statutes, selectively enforce others, and ignore still others. Oh wait …
Obama’s assault on the Senate in effect forced the court to consider not just the disagreement over pro forma sessions, but the entire modus vivendi, including the obviously central question of what constitutes a “recess.” However ancient the custom was, however commonly used, of course they had to yield to the court’s interpretation of the Constitution’s plain words and original meaning. Justice Stephen Breyer’s majority opinion rejected that conclusion, but Justice Antonin Scalia’s concurrence, along with that of three others, embraced it. (The 5 to 4 vote indicates that a later revisitation of this issue could go even further.) Had the Supreme Court adopted Scalia’s reasoning, Obama would have left a considerably weakened executive.
Today’s decision rebukes Obama appropriately, and I am relieved that the president’s recess appointment power — the one that let me do my job — was not more substantially curtailed. The real answer is that the Senate should ultimately have up-or-down votes for nominees, whether from Republican or Democratic presidents. Senators can, and almost certainly will, rough up nominees they dislike. And if they raise the battle to the level of preventing a floor vote, presidents should be able to respond through a recess appointment. By risking the demise of that option, Obama did the country and his office a disservice.
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