Wednesday, June 29, 2011

The Options for Democrats on Recess Appointments

As they threatened, House Republicans are blocking a Senate 4th of July recess in order to prevent any recess appointments Steve Benen thinks that's game, set, match:
The White House has been under a fair amount of pressure from the left lately to use the recess to make key appointments. It’s unclear whether the West Wing is inclined to use the president’s prerogative or not, but so long as these Republican tactics continue, it’s a moot point — Obama can’t make recess appointments if there’s no recess.
That's not necessarily true. I wrote a long post earlier this week laying out the rules and interpretations surrounding recess appointments, and as near as I can tell there's quite a bit of uncertainty. However, Obama and the Senate Democrats do have options available:

1. Obama could make an appointment despite the recess technically being under three days. The three day minimum for a recess to "count" goes back to a Clinton-era DOJ opinion; not only is that not necessarily binding anyway, but Obama could simply say that the Fourth of July is a de facto regular holiday recess regardless of whether the Senate holds brief, pro forma sessions or not. Note that George W. Bush followed the Clinton-era guidance when the Senate refused to "recess", so there's precedent against it; on the other hand, in that case the Senate was doing it of their own choice, while this time Senate leadership could be on the president's side.

2. The Senate could appeal to Obama's authority under Article II, Section 3 to resolve the dispute in favor of a July 4 recess. As far as I can tell, this is an untested presidential power.

In both cases, the odds are that the courts would be called on to resolve the dispute, and it's not at all clear what they would say.

The other thing that Obama and the Democrats could do is to work on the underlying problem of Senate obstruction by threatening to eliminate supermajority requirements for executive branch appointments. After all, the goal for the president is to fully staff the executive branch, and he'd certainly rather do that the regular way than through recess appointments.

In fact, Barack Obama has not treated executive branch appointments as a high priority (and has been hesitant to make recess appointments even before this latest GOP tactic), so I don't know that it's likely that he would push back hard now. If he wanted to, however -- and he certainly should -- he does have options.

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