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April 9th, 2010

Playing Recess with the Constitution

constitution-signing1Written by Nathan Tucker

“It is disturbing that [the President] has exhibited a grandiose vision of executive power that leaves little room for public debate, the concerns of the minority party or the supervisory powers of the courts. But it is just plain baffling to watch him take the same regal attitude toward a Congress in which his party holds solid majorities in both houses.”

That was the opinion of The New York Times in an editorial on January 9, 2006, when former President George W. Bush announced seventeen recess appointments while Congress was home for the Christmas holiday. Back then, the Times referred to recess appointments as a “constitutional gimmick” and an “end run,” but they suddenly lost those principles when President Obama recently made fifteen recess appointments during Congress’ Easter recess.

They aren’t alone. In 2005, then-Senator Barack Obama called John Bolton, who President Bush appointed as his United Nations ambassador during a congressional recess, “damaged goods.” Under the Bush White House, Senate Majority Leader Harry Reid would avoid taking full recesses in the Senate in order to prevent recess appointments, which he called “an end run around the Constitution,” from being made.

Why the change of heart among Democrats? Obama attempted to justify his use of recess appointments by painting Republicans as obstructionists. “The United States Senate has the responsibility to approve or disapprove of my nominees. But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people…”

The reality, however, is that there was bipartisan opposition to several of Obama’s nominees, including radical labor lawyer Craig Becker who had just been rejected by the Senate in February on a 52-43 vote. Also, as Senator Grassley pointed out, the vetting process of several of these nominees—specifically Jeffrey Goldstein and Alan Bersin—hadn’t even been completed yet.

The Constitution specifically requires Senate approval of a presidential nominee, with one exception: “The President shall have the 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 the next [congressional] session.” (Article II, Section 2, Clause 3) (emphasis added). This exception was necessary to, as the Times noted, “keep the government running smoothly in times when travelers and mail moved by horseback and Congress met part time.”

The constitutional exception for recess appointments seems pretty straight forward—if a vacancy occurs during a congressional recess, the president could appoint a replacement without Senate confirmation. This does not, however, give the president the power to fill a vacancy if the office became vacant while Congress was in session. Nor does it give the president the authority to fill a vacancy that occurred while Congress was in recess but has since reconvened.

In the hands of the modern president, however, the exception to the Senate confirmation process has become the rule. Rather than only filling those “vacancies that may happen during the recess of the Senate,” presidents over the past century have claimed the authority to fill any and all vacancies, regardless of when they occurred, so long as the Senate is in recess.

The New York Times and Senator Reid were right to call such an interpretation a “constitutional gimmick” and an “end run around the constitution.” By claiming the power to make a recess appointment for any office so long as he waits until a recess to do so, the President transforms the Senate confirmation process from a constitutional mandate to simply an option that he can chose or reject at whim.

This power grab makes a mockery of constitutional restraints on presidential authority and should be denounced if any president, regardless of party, claims it.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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