With the Senate mostly gone from Washington, this would usually be the season for Presidents to start making a few end runs around Congress with targeted recess appointments. Whether or not Barack Obama can do so between now and the return of Congress in late January depends on how one defines a “recess” — and just how motivated Obama might be to risk political blowback in testing his limits. As I note in my column for The Week today, Obama has plenty of tempting nominations withering on the vine — and plenty of opportunity to cost himself political support no matter what he decides to do on vacation:
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.
Republicans think that they have headed off Obama at the pass by getting Harry Reid to allow pro-forma sessions every three or four days during the break. They argue that no President in the last 20 years has made a recess appointment with the Senate out less than 10 days, which is true … but probably irrelevant. Article II, Section 2 of the Constitution does not define the length of a “recess” for the purposes of unilateral appointments, and neither does the rest of the Constitution. Republicans can hope that Obama won’t break with more recent tradition, but Obama could very well use Teddy Roosevelt as a precedent, who made recess appointments when the Senate closed for a single day.
The Congressional Research Service analyzed this question in 2008:
The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over the last century, as shorter recesses have become more commonplace, the Department of Justice has offered differing views on this issue. Most recently, in 1993, a Justice Department brief implied that the President may make a recess appointment during a recess of more than three days. On at least three occasions, the Senate has used procedural tools to prevent the occurrence of a recess of more than three days for the stated purpose of preventing such appointments: the 2007 Thanksgiving holiday period, the period between the first and second sessions of the 110th Congress, and the 2008 Presidents Day holiday period. In each of these cases, the Senate met in pro forma sessions (during which no business was to be conducted) every three or four days over the course of what otherwise would have been a longer Senate recess. The President made no recess appointments during these periods.
Although President Theodore Roosevelt once made recess appointments during an intersession recess of less than one day, the shortest recess during which appointments have been made during the past 20 years was 9 days. Appointments made during short recesses (less than 30 days) have sometimes aroused controversy, and they may involve a political cost for the President. Controversy has been particularly acute in instances when Senators perceived that the President was using the recess appointment process to circumvent the confirmation process for a nominee who was opposed in the Senate.
In other words, the pro-forma sessions might constrain Obama, but only if he chooses to follow recent precedent. If he chooses to ignore it, Republicans have no option to block those appointments — but they certainly can use them to paint Obama as an out-of-control executive who wants to rule by decree rather than govern by law. With a presidential election ahead, that might constrain Obama enough to avoid a recess appointment, but I wouldn’t bet the rent check on it.
Speaking of the NLRB, this video from the Workforce Fairness Institute in September gives an idea of what might be at stake, and why Obama might be tempted to act now to allow the NLRB to maintain its momentum on regulatory adventurism, via my Townhall colleague Kevin Glass: