Bring on the recess appointments

BRING ON THE RECESS APPOINTMENTS…. During the Bush/Cheney era, the White House would routinely nominate unqualified political hacks to key government posts, prompting Senate Democrats to block some of the worst of the bunch. The White House, in turn, would routinely circumvent Congress and fill the vacancies anyway, through “recess appointments.”

A president has the authority to appoint officials — on a temporary basis — to fill government vacancies when Congress is not in session. Bush took this power to new heights (or depths, as the case may be) to the great consternation of Democrats.

President Obama hasn’t had to bother with recess appointments, probably because his party has a huge majority in the Senate. But in about two hours, the Republican caucus will go from 40 members to 41, and the Senate’s ability to confirm nominees will come to an abrupt halt.

Which makes the prospect of recess appointments increasingly likely.

Democrats are mulling the use of recess appointments to overcome the Senate GOP’s newfound ability to block Obama administration appointments to judicial and regulatory posts.

Senate Majority Leader Harry Reid , D-Nev., said Thursday he may be forced to support the hardball tactic unless some of the chamber’s Republicans consent and let nominees through. Once Republican Scott P. Brown of Massachusetts is sworn in at 5 p.m. Thursday, the minority will have 41 votes — enough to sustain a filibuster.

“What alternative do we have? What alternative do we have?” Reid asked.

The key downside of these appointments — irrespective of political comity — is that those installed by the president can only serve a year or two (it depends on the post) without congressional confirmation.

But if Senate Republicans are simply unwilling to let the chamber vote on the administration’s nominees, the White House has a straightforward choice: allow posts to remain vacant indefinitely in the face of unprecedented obstructionism or start embracing recess appointments.

In the interest of fairness and intellectual consistency, I should note that I’m not a big fan of this tactic.

Article II, Sec. 2, of the Constitution says, “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.” Note that it says, “the recess,” not “a recess.”

In the early days of the country, framers saw recesses that could last months and wanted presidents to be able to fill key positions temporarily in emergency situations without the Senate’s “advice and consent.” There’s a lengthy break following the final adjournment for the legislative session. This is “the recess.” The provision was not about giving presidents the authority to circumvent Congress when the White House felt like it.

In the modern understanding, though, any recess is an opportunity for a president to start filling vacancies with appointed officials. If lawmakers head out of town for a President’s Day Recess, as they will in a couple of weeks, Obama can conceivably start making these appointments to his heart’s content.

If I had to guess, I’d say the president isn’t crazy about this option, either, which is why he hasn’t taken advantage of it to date. He was a constitutional law professor; he knows the recess appointment option isn’t supposed to be used this way.

But Senate Republicans are simply out of control, and are deliberately undercutting the political process in ways that threaten to permanently undermine the institution. If they oppose the president’s nominees for various posts, they’re welcome to vote against them. But the GOP has decided to simply not allow votes, and there’s no reason for the White House to tolerate this.

If we’re being honest about this, do I think using the recess power for routine, non-emergencies constitutes abuse of the option? Yes, it probably is. But the far more offensive abuse is Senate Republicans not letting the chamber vote on these nominees in the first place.