The National Labor Relations Board (NLRB) will soon surrender legal authority due to the Senate minority's confirmation obstruction. The Board will lose its required three-member quorum at the conclusion of the current session of Congress -- Jan. 3, 2012 at 12 p.m. When left with only two members, the Board is stripped of both its adjudicatory and rulemaking authority. The recovering American economy does not need such uncertainty.
Just last year, in New Process Steel v. NLRB (2010), the Supreme Court voided hundreds of NLRB rulings made when the agency last lost its required Board quorum. During oral arguments, Chief Justice Roberts asked Deputy Solicitor General Neal Katyal why the agency's membership had been allowed to lapse when three Board nominations languished in the Senate. Katyal acknowledged the recess option but added: "I think our office has opined the recess has to be longer than 3 days." Wrong, and not helpful. There is no three-day minimum recess required to trigger the president's appointment authority.
John Roberts deserves a proper answer and Barack Obama deserves to consider all his appointment options. The nonpartisan Congressional Research Service's "Recess Appointments: Frequently Asked Questions" details both answers and options. In sum, recess appointments work. The president signs commissions, immediately putting officials to work. The Senate is now on a five-week break (reconvening Jan. 23, 2012), giving President Obama a window to exercise different recess appointment options.
Obama Refuses to Bargain with Obstructionists
As the 112th Senate left for its break, Minority Leader Mitch McConnell unsuccessfully attempted to wrangle a recess concession from Obama. McConnell demanded that Obama promise not to sign any recess commissions during the holidays. McConnell blocked a confirmation vote for 50 officials when Obama ignored the Article II, Section 2 shake down.
Adding insult to constitutional injury, congressional Republicans again manipulated the Senate into scheduling 10 pro-forma sessions -- intending to interfere with Obama's recess appointment authority. (As I argued in recent Jurist commentary, in prior posts, and a National Law Journal opinion, the sessions do not prevent the Executive from signing recess commissions.)
Then, two days into the Senate's five-week break, all 47 Senate Republicans joined together to send the president a letter warning Obama not to use recess commissions. Senate Republicans warned that NLRB recess commissions would "undermine the Senate's advice and consent role." The same partisans who use every scheme to delay and impede the Senate from timely confirmation votes boldly express concern that Obama might "undermine" its dysfunctional processes. The Senate GOP letter warns that NLRB recess appointments would
set a dangerous precedent that would most certainly be exploited in future cases to further marginalize the Senate's role in confirming nominees and could needlessly provoke a constitutional conflict between the Senate and the White House.
The letter failed to note that President George W. Bush recess commissioned seven NLRB Board members.
It is the repeating cycle of partisan obstruction payback -- worsening during each of the past three presidencies -- that "marginalizes" the Senate's role.
The worsening confirmation obstruction manifests a nullification of republican governance. Evidence the Republican May 2011 pledge to filibuster "any" Director nominee of the Consumer Financial Protection Bureau (CFPB) thus limiting its authority to protect Americans from non-bank financial fraudsters. Republicans purposefully nullify the CFPB's legal authority by their recent filibuster of Richard Cordray.
Two Appointment Methods
In addition to the NLRB and CFPB appointments, other recess appointments should be made, including to the Federal Reserve, FDIC, Treasury, FCC, FEC, Defense, HHS, State, et al.
The Constitution grants the President two alternative methods for principal officer appointments. President Obama should use his bully pulpit to campaign for timely Senate confirmations. He should also substantially increase his use of recess appointments. In addition to the blocked nomination-confirmation process, Article II, Section 2 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."
Strong presidents have each signed hundreds of recess commissions. During a 1903 adjournment lasting only minutes between the first and second sessions of the 58th Senate, President Theodore Roosevelt made an en masse recess commissioning of over 160 officials.
Invoking T.R.'s Precedent or Signing Commissions During Any Senate Break
During the Senate's five week holiday, President Obama has several recess options, including invoking Theodore Roosevelt's intercession mandatory adjournment precedent. Courts have long held that recess appointments may be made during both intersession and intrasession Senate breaks.
Recess commissions signed before the end of the 112th Senate's first session -- Jan. 3, 2012 at 12 p.m. -- last through 2012. However, recess commissions better-timed to be signed instantly at noon (or anytime after the second session formally begins) last through 2013. The officials could then be re-recess appointed during Obama's second term.
In a time and place of his choosing, Barack Obama should use the Article II, Section 2 recess appointment alternative. President Obama should concurrently renounce the three day recess myth underlying Senate pro forma sessions announcing a simple test: If the Senate is not sitting as a deliberative body able to provide timely confirmation consent, the Executive may fill any vacant federal office.
Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America School of Law.