A federal court has just made it more difficult for President Obama — and his successors — to fill important positions in the federal government without the formal approval of the Senate, even when senators go out of their way to thwart the president’s plans by staging what amounts to make-believe deliberative sessions.
It is interesting, if not significant, that all three judges on this particular court are Republicans and it has been the Republicans on Capitol Hill who have been blocking Obama’s appointments. But the ruling will impede any future president, Republican or Democrat, whose politics generate sufficient Senate opposition that blocking such appointments is likely.
The Obama administration’s position has been that the president was entitled to conclude that senators were actually on a lengthy recess — thus creating the possibility of legal recess appointments — even though the Senate, by cynically scheduling occasional but extremely brief meetings (while conducting no business other than moving to adjourn) represented itself as having thus avoided an actual recess.
The court went beyond the narrow controversy over what critics call mock Senate sessions and issued such a sweeping ruling that legal specialists predicted its reasoning could eliminate the recess appointment power for all future presidents.
The dispute began in 2007 when Democrats took control of the Senate. Hoping to block President Bush’s recess appointments, instead of formally recessing for Thanksgiving they arranged for a member to enter the nearly empty chamber every third day and bang the gavel.
Not surprisingly, Republicans have embraced a similar strategy — although not identical because the GOP doesn’t control the Senate. A year ago, however, Obama declared that such sessions are a sham and appointed the three Labor Board members (and Richard Cordray to be director of the Consumer Financial Protection Bureau). The court, however, rejected the “sham recess ” argument, and so Cordray’s appointment is in jeopardy too.
The Constitution was adopted in days when it might take weeks for members of Congress to return to the capital from a recess and therefore it was written to allow presidents to fill vacancies for positions that would otherwise require Senate approval.
Obama has made 32 such appointments. President Clinton made 139 while the second President Bush made 171, including that of the controversial John R. Bolton to serve as ambassador to the United Nations.
The new ruling, by the U.S. Circuit Court of Appeals for the District of Columbia, would appear to hold that nearly all such appointments are unconstitutional. Presidents may bypass the confirmation process, the court held, only during the recesses between formal sessions of Congress, and that generally happens just once a year. Two of the three judges further ruled that presidents may fill only vacancies that occur during that same recess.
The White House hasn’t said if the Justice Department would appeal the ruling, which came in a lawsuit brought by a bottling company disputing a National Labor Relations Board decision in a labor dispute. The company persuaded the court that Obama’s three appointments were invalid and that therefore the five-seat board lacked a quorum to take any action.
Ordinary citizens are not so legally informed that they can confidently pass judgment on the wisdom or folly of a court’s ruling, but they can easily see that the practice of holding extremely brief meetings designed to achieve absolutely nothing but to thwart a president is reprehensible, regardless of which party embraces the practice.
What Americans want is that their elected representatives pursue what’s best for the nation.