Obama's recess dilemma

Normally, a recess means that work gets put on hold. A holiday means a break from normal activity, even in Washington D.C. But as with most other quaint notions of normality, recesses and holidays in the beltway take on a partisan significance, especially when Republicans and Democrats believe they have an opportunity to score political points.

At the heart of this particular holiday rancor is Article II, Section 2 of the U.S. Constitution, which 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." The original intent of this clause was to provide the president a way to fill sudden openings in the executive and judicial branch at a time in history when calling Congress into session immediately was impossible, given the transportation and communication limitations of the era. This rule prevented government from becoming paralyzed in the absence of the Senate, and was expected to be used only in pressing circumstances.

Barack Obama has not exactly been a shrinking violet when it comes to recess appointments.

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Of course, any power granted to an office without restriction will eventually get used and even abused. That's true no matter which party holds the presidency. Recess appointments have always been controversial, and that has become especially true in the last few decades. Thurgood Marshall was put on the 2nd Circuit Court of Appeals through a recess appointment by John F. Kennedy, after southern Democrats threatened to block Marshall's confirmation. Bill Clinton's recess appointment of Bill Lan Lee for assistant Attorney General for civil rights avoided a Senate rejection over Lee's support of affirmative action. George W. Bush had to use a recess appointment to get John Bolton installed as ambassador to the U.N. when Democrats opposed to Bush's foreign policy in general, and Bolton's hostility towards the U.N. specifically, threatened to reject him. Bush also used his recess appointment power to install two appellate judges, Charles Pickering at the 5th Circuit and William Pryor at the 11th Circuit, when Democrats blocked votes on nearly all of his appellate appointments.

Barack Obama has not exactly been a shrinking violet when it comes to recess appointments. Last year, Obama installed James Cole as deputy Attorney General, despite concerns in the Senate over his performance as independent monitor of AIG from 2005 through 2009, a period in which taxpayers had to bail out the insurance giant to keep it from destroying the American financial sector. Obama also gave a recess appointment to Donald Berwick to run Medicare and Medicaid, even though Democrats had 59 seats in the Senate and Berwick hadn't bothered to complete his initial questionnaire for his Senate confirmation process. That was controversial enough to provoke fellow Democrat Max Baucus into publicly criticizing Obama.

Another recess has now arrived, and with it, the opportunity to bypass a more closely-held Democratic Senate. It may not be a question of if Obama will use his recess power, but when — and how often. Obama has a fight brewing over the National Labor Relations Board and its attempt to impose new union-friendly policies. The term of NLRB member Craig Becker, one of Obama's previous recess appointments to the NLRB, and one that caused a great deal of anger in the business community, has expired. Republicans in the Senate have held up two other appointments over the new regulations, which means that the NLRB board might not have a quorum. Unless Obama can get the Senate to act quickly to approve one or more of his nominees, the NLRB will not be able to do anything at all.

There would be considerable political risk in the decision to use a recess appointment in this case. Obama's union allies want recess appointments that will allow the NLRB to promulgate those new, union-friendly regulations, and Obama needs unions to help organize the ground game for his re-election effort. However, the business community that Obama has tried to court all year wants the NLRB's regulatory adventurism curtailed, and will see a recess appointment as a signal that Obama wants to push the board further along its current anti-business trajectory. Obama risks losing important contributors, and worse, pushing them into the arms of the GOP.

Obama has other opportunities for recess appointments as well. Sen. Charles Grassley (R-Iowa) has put holds on two FCC nominations in an attempt to force FCC chair Julius Genachowski to disclose communications between the agency, the White House, and LightSquared, a politically-connected firm that got a controversial waiver from Team Obama. Bypassing the Senate would cut Grassley out of the equation, but it would also contribute to the perception that Obama has something to hide on LightSquared.

Richard Cordray might be a candidate for a recess appointment. Republicans in the Senate blocked his confirmation a couple of weeks ago in a dispute over the structure of the Consumer Financial Protection Bureau. Earlier this year, Obama had to withdraw the name of his first nominee to run the CFPB, Elizabeth Warren, and the rejection of Cordray undoubtedly rankled the White House, which sees the fight over the CFPB as old news and the block on Cordray as illegitimate.

With the unlimited power to make recess appointments, why would Obama hesitate? For one, Obama needs to move legislation next year. Bypassing the Senate creates more hostility on Capitol Hill, even with members of one's own party, as the Berwick appointment proved. Voters might see it as a demonstration of leadership in response to an obstructionist Senate — perhaps more so with Cordray than with others — but they could also see it as executive arrogance, or even corruption.

Anticipating the temptation that all of these cases pose, as well as a few open judicial slots, Republicans forced Harry Reid to allow pro forma Senate sessions every three or four days for the five weeks of this current recess. The strategy is designed to argue that the Senate hasn't gone into recess at all, or at least not significantly enough to justify a recess appointment. A president hasn't made a recess appointment in the last 20 years during a period in which less than 10 days have passed between Senate sessions, say Republicans, and they believe this will keep Obama on the sidelines over the holidays. However, that relies heavily on tradition, not the law; the Constitution doesn't define the requisite length of a recess for the purpose of presidential appointments. Teddy Roosevelt made several recess appointments when the Senate went dark for just a day — and Obama has evoked TR more than once over the last few weeks. Perhaps the president really will start swinging that big stick soon.