Recess Appointments: Obama Prepares to Implement "Yes We Can!"

President Obama can and should fill federal vacancies with the stroke of his pen. In this time of crisis, history may judge harshly if he fails to do so.
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Last week, Harry Reid stated that recess appointments are needed to fill the growing number of federal government vacancies. On the Senate floor, Majority Leader Reid referenced his past resistance to recess commissions before asking: "But what alternative do we have? What alternative do we have?"

On Tuesday, February 9, 2010, President Barack Obama announced he was considering making the first recess appointments of his presidency. Obama made a surprise visit to the White House press corps to announce that, during a meeting with congressional leadership, he had informed Senate Minority Leader Mitch McConnell and Majority Leader Harry Reid. "If the Senate does not act, and I made this very clear, I will consider making several recess appointments during the upcoming recess because we can't afford to let politics stand in the way of a well functioning government." Obama told reporters: "In our meeting I asked the congressional leadership to put a stop to these holds in which nominees for a critical job are denied a vote for months."

The Senate GOP caucus has gone too far in obstructing Barack Obama's executive, regulatory and judicial appointments. Beyond delaying and dispiriting the Administration, Republican confirmation obstruction jeopardizes our national government's functioning in critical areas of national security, economic stabilization and federal justice.

Scott "41" Brown and Richard "$45 billion" Shelby Compete for Headlines

Best obstruction evidence is Sen. Richard Shelby's short-lived "blanket hold" -- a ransom demand seeking $45 billion in Alabama earmarks -- threatening to block more than 70 defense, state, justice, and security positions. In response to widespread outrage over the weekend, Shelby tailored the blanket hold to apply only against the three Defense Department nominations most directly tied to the ransom demand.

Announcing the obstruction reduction from 70 to only 3 nominees, Shelby's spokesman acknowledged that getting White house "attention" was the "purpose of placing numerous holds."

Many observers already knew it was his need for attention and his media-envy problem that led Sen. Richard Shelby to issue the absurd "blanket hold." News of Shelby's blanket hold broke the same day as Scott "41" Brown's early Senate seating. Sen. Brown took Ted Kennedy's seat a week early to help block Craig Becker's confirmation to the National Labor Relations Board.

Brown joins Ben "42" Nelson supporting John McCain's longstanding "grudge hold" against Becker. The obstruction will further damage the five member NLRB which has been hobbled by three vacancies since 2008. The legal authority of the scuttled, two-member NLRB is now being questioned in the Supreme Court. Many NLRB rulings are now suspect. Businesses and markets hate such uncertainty; our fragile economy and American workers will suffer for it.

In the end, the gross quantity of Shelby's pulled pork for sweet home Alabama beat out newbie Brown for the best and most headlines. Shelby's reduction of the obstruction to target only the three nominations most directly related to approval of the $45 billion in earmarks put him in the next week's news cycle. Shelby got his desired attention but still doesn't get the fact that he and his Republican caucus continue to make the U.S. Constitution's Article II, Section 2 "advice and consent" process an international joke.

This is not the first time the limelight-deprived senior senator from Tuscaloosa embarrassed himself and the Senate. Unfortunately, it will likely not be the last time that Scott Brown, as the GOP caucus's newest obstructionist, competes with Shelby for headlines.

Harry Reid: National Leader

In stark contrast to Shelby and Brown stands Sen. Harry Reid who protects the institutional integrity of the Senate as he fights Republican obstruction of both needed legislation and appointments. In this time of genuine crisis, Reid proves himself a genuine leader. In preemptively accepting recess appointments, Reid puts the nation's interest in a fully staffed government above his own institutional authority and personal power.

The people of Nevada have good reason to be proud of Harry Mason Reid as he tirelessly works for the nations and for their state interests. Meeting the challenge in the Silver State's tough economic times, Reid actively promoted a jobs agenda, fostered business development, and fought for a clean environment (and against Yucca Mountain). In the best traditions of the United States Senate, Harry Reid works for Nevada while also serving the national interest.

Majority Leader Reid deserves the nation's respect and support; as do other Democratic Senators (such as Pat Leahy and Tom Harkin) who fight daily for confirmation floor votes for nominees-- even while plans for a Constitutional Option to eliminate filibusters and holds develop.

Above all, President Barack Obama needs the nation's support as he seriously considers the recess appointment alternative.

Supporting Barack Obama's Recess Appointments

For past presidents of both parties and for Barack Obama, I have attempted to defend the executive's appointment prerogative. In both academic and popular writings, I have long argued for the broad utilization of the recess appointments power - beyond its use just for controversial nominees.

I have attempted to sound the warning about the harm of confirmation delay and have suggested various appointment reforms (e.g. reducing the number of appointments needing confirmation.) The present confirmation breakdown threatens a Senate institutional rupture and federal vacancy crisis equal or worse than any in the history of the nation. Recess appointments are a valid alternative and at least a partial solution.

It is a practical procedure. Skip the nomination, skip committee hearing, and skip the obstruction. President Obama signs the commission and puts the official to work. The act may be done during the shortest of intra-session Senate breaks. The commission lasts until the end of the Senate next session. (A Presidents' Day recess appointment would last until the end of 2011. This calculation assumes that modern tradition continues with only two formal Senate sessions established in the coming 112th Congress.)

Traditional nomination and Senate confirmation processes can continue while recess commissioned officials hold their posts (e.g. Earl Warren, William Brennan, and Potter Stewart each began their Supreme Court tenure as Eisenhower recess appointee and each were subsequently life-tenure confirmed). Or, the president can choose, at the end of the Senate next session, to re-recess appoint the public servant.

The Congressional Research Service, a bipartisan research division of the Library of Congress, published a series of reports explaining both executive and judicial recess appointments; as well as a helpful FAQ.

This alternative appointment authority is textually based, historically supported, and has been upheld by numerous court opinions. Beginning with George Washington through Abraham Lincoln and to recent administrations, all of our great presidents have made recess appointments by the hundreds. As often referenced, Theodore Roosevelt recess commissioned 160 officials in one en masse signing.

The Founder's wise reasoning in providing an appointment alternative is as evident today as 223 years ago - the president must keep the government fully staffed. There are practical downsides, but few if any enforceable legal limitations, to the temporary appointments.

As with any unilateral power of the executive, it can be subject to misuse. Harry Reid became concerned that President Bush misused the authority for controversial and unqualified officials. In 2007-2008, Reid cleverly scheduled the Senate to be gaveled into pro forma meetings every three days to confuse Bush.

Despite my challenge to Bush to call Reid's constitutional bluff, the president instead folded. Bush made no recess appointments in his last year of office. Majority Leader Reid exploited the fact that George Bush did not appreciate the broad scope of the unilateral authority, the Constitution or Texas hold 'em. History is the final judge of a president's appointment selections and processes.

Unlike his predecessor, President Barack Obama is a student of the Constitution and a careful steward of executive authority. President Obama genuinely wanted to "move beyond" the confirmation wars with bipartisan cooperation. Obama has been cautious and even suspect using his unilateral recess appointment authority. However, the Republican caucus has left little choice. And, the Constitutional Option has yet to be implemented.

Senate Majority Leader Reid asks, "what alternative" for a functioning government?

It is time for Barack Obama to give his final answer. President Obama can and should fill federal vacancies with the stroke of his pen. As I have suggested, he should go to the White House's Roosevelt Room and under T.R.'s famed portrait, Obama should sign recess commissions by the score. In this time of crisis, history may judge harshly if the President fails to do so.

Victor Williams is a clinical assistant professor at Catholic University of America School of Law and an attorney in Washington, D.C. The views expressed are the author's alone and do not reflect those of CUA.

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