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GOP ♥ intrasession recess appointments, too

By Josh Richman
Tuesday, February 5th, 2013 at 9:56 am in George Miller, Obama presidency, U.S. House.

The recent federal appeals court decision that invalidated President Obama’s recess appointment of three National Labor Relations Board members – and perhaps any decisions in which they took part – would’ve wreaked havoc upon hundreds of appointments made mostly by Republican presidents since 1981, a new study has found.

A recess appointment is an appointment by the president of a federal official while the U.S. Senate is in recess. Recent presidents have made such appointments both intersession (between sessions or Congresses) and intrasession (during a recess within a session). But the U.S. Court of Appeals for the D.C. Circuit ruled last month that intrasession recess appointments are unconstitutional, and that intersession recess appointments can only be made for vacanies that happen to occur during that intersession break – not for any vacancies that existed before the recess.

In a memo issued yesterday, the independent Congressional Research Service found 329 intrasession recess appointments made since 1981 – 72 by Ronald Reagan, 37 by George H.W. Bush, 53 by Bill Clinton, 141 by George W. Bush and 26 by Barack Obama. It also tracked 323 intersession recess appointments by those presidents, but noted the lack of specific vacancy dates for many of those make it unclear how many would’ve been precluded by the recent court ruling.

This goes to what Rep. George Miller, D-Calif., and many others said after last month’s court ruling.

“Today’s decision flies in the face of precedent and past practice. It radically undermines the ability of any president – Democratic or Republican – to staff critical government positions when another party engages in political obstructionism,” Miller had said. “We disagree with these judges’ distorted view of the Constitution and their attempt to reshape the recess appointment power in a way that, if accepted, would render invalid hundreds of past appointments by previous administrations. We expect that this decision will not stand.”

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  • JAFO

    This is a purely political and entirely predictable statement from one of Mr. Miller’s flacks. I would have expected nothing less from a Democrat in this case. Had the case gone the other way, one could easily imagine the identical statement coming from a different flack, but attributed to a Republican member of Congress. Yawn. Like the recently-concluded great filibuster “fix,” neither side truly wants much in the way of reforms, fearing that when the balance of power shifts, as it inevitably will, that one side or the other will long for things to be the way they used to be.

  • JohnW

    Miller is 100% on target. Even John Yoo, the Bush attorney who made the legal case for enhanced interrogation, agrees the D.C. court went way too far in limiting Presidential authority under the recess appointments clause of the Constitution.

    What made the Obama NLRB appointments different is that he pushed the envelope on intra-session recess appointments by ignoring the Republican pro forma sessions, where a lone Senator gavels in for just a minute every three days during the recess for the specific purpose of preventing a recess appointment.

    The all-Republican 3-judge Appeals Court panel should have limited its review to that issue. Instead, they used the opportunity to make a much broader ruling that, if upheld by the Supremes, will virtually eliminate the ability of any president to ever again make a recess appointment as provided for in the Constitution. Similar to the Citizens United decision, the D.C. Appeals court went way beyond the scope of the case before it.

    In the specific case of the NLRB appointments, Senate Republicans forced Obama’s hand by blocking the Senate from performing its Advise and Consent responsibility. This wasn’t a matter of them not liking the people Obama nominated for the open seats. The goal was to nullify the NLRB as an agency, since the NLRB cannot make decisions without a quorum.

  • Elwood

    We’ll see what SCOTUS says.

    You never can tell.

  • JohnW

    Re: 3 Elwood

    Yes. I predict SCOTUS will at least narrow the ruling to the issue of whether Obama exceeded his authority by ignoring the sham “gavel in/gavel out” pro forma sessions. Otherwise, the courts will have effectively nullified the recess appointments clause. John Yoo agreed that the court went too far, but he blamed Obama’s aggressiveness on the issue for provoking the court to get involved in the first place. It’s a bit like blaming a rape victim for dressing too provocatively.

    Even a narrowed down ruling on that question, if it goes against Obama, would nullify the recess appointment authority. Inter-session recesses are already pretty much a thing of the past. Congress schedules its breaks intra-session, which is why presidents of both parties have relied on the intra-session recess appointments. Democrats created a Frankenstein when they started the pro forma session nonsense. Now, the shoe is on the other foot and being used against them.

    Democrats invented the pro forma session, just as the Dixiecrat Democrats historically were the party associated with the filibuster. However, the Republicans always seem to be more ruthless and talented at using both the filibuster and the pro forma session. Harry Reid was too wimpy to reform the filibuster when he had the chance. Watch. When Republicans get the Senate majority, they won’t be so wimpy about dumping the filibuster.