The major breakthrough finally comes: Barack Obama announced in his speech in Ohio today that he was going to recess appoint Richard Cordray to head the new Consumer Financial Protection Bureau, and then later that he would use the same Article II power to fill the vacancies on the National Labor Relations Board.
So here we go. This is, to be sure, uncharted waters. In both directions.
First: Republican obstruction of the normal advise and consent procedures has been, without a doubt, unprecedented. That began with the blanket filibusters against everything in the Senate -- that is, the "60 vote" Senate, which did not exist across the board until January 2009. That extended to Republican "nullification" -- the tactic of prohibiting agencies they don't like for fulfilling their lawful functions by refusing to allow any nominee to come up for a vote. In the case of the NLRB, this actually wound up producing a Republican filibuster of a Republican nominee in order to keep that board (which by statute has both Democratic and Republican appointees) from having a quorum needed to operate.
But that's all about the norms of regular confirmation. What really pushed the rules was (as Congressional scholar Sarah Binder describes) the Republican House's attempt to prevent recess appointment by using pro forma sessions. That's a tactic that was deployed by the Senate Democratic majority near the end of George W. Bush's administration to prevent recess appointments. Whatever it's legitimacy in that case, it's yet another stretch for the House of Representatives, which has no Constitutional role in executive branch nominations, to use Constitutional machinery to block a Senate recess in order to prevent recess appointments.
So that's the real "unprecedented" in this case. Whatever the president decided in order to react to GOP obstruction would have been unprecedented, because we've just never been here before. Remember, until very recently, a party that held the Senate and the White House would simply confirm most nominees speedily, with any opposition at all rare, and filibusters unheard of, until the 1990s. The only significant exceptions were the ends of presidential terms when the Senate was held by the out-party, which of course isn't the case now.
Now, Obama's response. As Binder points out, the problem is that the presidential power here is Constitutionally undefined. The Constitution only says that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate." So what counts as a recess? That's up for grabs, as this CRS report and my somewhat shorter summary of it explained.
Indeed, Obama had three possible responses to the "pro forma session" tactic. He could have used the Teddy Roosevelt trick of using the space between the First Session and the Second Session of the 112th Congress yesterday; he could have used a previously untried Constitutional provision to resolve the dispute about recess in favor of the Senate; or he could, as he did today, choose the argument that the non-recess recess was a sham, and that it was sufficient to trigger the Constitutional authority.
None of the three is firm, precedent-affirmed Constitutional ground, although in my view all three are probably kosher (note in particular that the TR intersession appointments were contested by Congress, although only after it was a moot point, so there's no particular reason to believe that TR style appointments would have been on any firmer ground). For the relevant court cases, see the above-linked CRS report or my explainer, or see Think Progress's Ian Millhiser's argument or Sarah Binder's conclusion. On the other hand, see Steve Smith's comment to Binder's post, and see also Matt Glassman's post. The White House has issued a statement, but it's mostly boilerplate, and so far they haven't released (at least that I've seen) a full legal opinion on the matter, which would presumably clarify and (for pro forma sessions) override a Clinton-era opinion that interpreted the Constitutional requirement as a three-day minimum. Basically, however, it appears that they are arguing that any pro forma sessions would be insufficient to prevent a Constitutional "recess." That doesn't sit well with Smith and Glassman, who both argue that it's up to Congress to decide what to do when they're in session, which they plainly are during those pro forma meetings. That's a strong argument, and might even win in court, but I disagree, as do Bush-era DOJ lawyers, although I certainly agree with Kevin Drum that we'll have to see the legal opinion the WH is working from. One key point to me: the Senate Majority Leader agrees with the president's decision. After all, if the majority of the Senate (as voiced by its Leader) agrees that the Senate is in a Constitutionally-qualifying recess, it's a lot harder to argue that the president is unilaterally changing the rules.
I don't agree, then, with Tim Noah, who finds no justification for the action, and argues that this would open up the possibility of appointments during normal weekend recesses (or while he doesn't mention it, recess appointments when the Senate recesses overnight). The key is that the White House isn't saying anything about the three-day minimum; they're just arguing that what's happening now is really a weeks-long recess, not a bunch of little three-day recesses. In fact, once the option of intra-session recess appointments was established (which was done in the mid-20th century), there's no reason at all to assume that there's any difference between inter- and intra-session recesses. In other words, using the (again, established but contested) TR precedent would, some might argue, be far more of a justification for future weekend "recess" appointments than would what Obama did today.
Look, what we have here is an ambiguous, vague Constitutional clause. The president has every right to interpret it in his favor. At least in this case that he's doing is, in my view, a lot less hostile to the spirit of the Constitutional and certainly to the spirit of norms and precedents than what Republicans in Congress have been up to. And, again, one could make that same argument for Senate Democrats under Bush -- but at least they had the argument that recess appointments would be going around their Constitutional role (the only question is whether their solution was legitimate). House Republicans, and perhaps minority-party Senate Republicans, have much less of a case.
The real solution to all of this is to reform executive branch nominations and confirmation. And that's why I really like these appointments: they show a president who (finally) seems to care about that process, and perhaps may use the threat of further appointments, either now or next year if he is re-elected, to push for much-needed reform. What's needed is a way to action on these appointments much more rapid while preserving the Senate's important role, but at the same time finding procedures or incentives for compromise during times of divided government. Will we get it? I don't know, but I am convinced that this is at least possibly a step in that direction.
(Updated to include the point about Harry Reid)