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Obama announces a raft of recess appointments

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In case you missed it, over the weekend President Obama announced 15 recess appointments to a variety of important administration jobs.  These are all nominees who have been waiting a very long time to be confirmed by the Senate, but who have been stalled by Republican obstructionism.

The administration justified its action as follows:

Obama Administration appointees have faced an unprecedented level of obstruction in the Senate.

  • President Obama currently has a total of 217 nominees pending before the Senate.  These nominees have been pending for an average of 101 days, including 34 nominees pending for more than 6 months.
  • The 15 nominees President Obama intends to recess appoint have been pending for an average of 214 days or 7 months for a total of 3204 days or almost 9 years.
  • President Bush had made 15 recess appointments by this point in his presidency, but he was not facing the same level of obstruction.  At this time in 2002, President Bush had only 5 nominees pending on the floor.  By contrast, President Obama has 77 nominees currently pending on the floor, 58 of whom have been waiting for over two weeks and 44 of those have been waiting more than a month.

    • I’ve expressed discomfort before about the modern use of the power to make recess appointments — basically, I don’t think the Constitution really authorizes it.  But in terms of modern historical precedent, there’s no doubt that Obama is doing the right thing.  He is, indeed, facing unprecedented levels of obstruction by the Senate Republicans, and it’s affecting his ability to do his job.  So it’s perfectly appropriate for Obama to play hardball on this.

    Plus, it means that Craig Becker is now on the NLRB, which will really annoy the GOP.  đŸ˜€

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    Comments

    1. Recess appointments are governed by Article II, Section 2, Clause 3 of the Constitution, which states:

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      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.

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      p>Your contention that a vacancy must occur during a recess in order to fill the seat is noted (although I think the use of “may” instead of “shall” weakens your case.)  But unless the  less rigorous interpretation is denied the SCOTUS, what other precedent is there to deny such appointments?

      • First, it is FAR from clear that the Constitution actually authorizes the President to do what Bush has done here (or what numerous other Presidents have done in the past).  The relevant portion of the Constitution reads: “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 me, anyway, the most natural reading of that sentence is that it applies only to “Vacancies” that “happen,” that is, that come into existence, while the Senate is in recess (as, for example, when the incumbent dies during a recess).  That, of course, is not the situation with Bolton.  The U.N. Ambassadorship has been vacant for months, and the happenstance of the Senate going into recess during the vacancy does not mean that the vacancy “happened” during the recess.  For 200 years, however, Presidents have taken a much more liberal view of the “recess appointments” clause.

        (Diary 597)

        • Precedence carries more weight than the interpretation of an individual in nearly all court actions, so I see no reason to ignore 200 years of precedence in this case.

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          p>Besides, given the BS reasons that are being used to obstruct these appointments, the fact the the President has shown restraint in appointing only the most aggregious examples is worthy of praise. Personally, I would rather see him appoint the entire slate in order to say “screw you” to the party of “No”, but the President is better than me.

      • As I’ve explained several times before, the text you quote doesn’t seem to contemplate the current practice, nor does it make much sense.  But it’s never been challenged in court AFAIK, and there’s a lot of history here.  So most likely the practice will continue unabated.

        • An originalist after all, councilor Kravitz! I would have thought you would have given more weight to 200-odd years of American history as lived by our worthy constitution.

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          p>Learn something new every day here on BMG.

    2. The Republicans were sitting on all his appointments.  The tactics here were appropriate.

      • I think another appropriate tactic would be to right up an organizing resolution with teeth for this January in the Senate.

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