Thursday, August 4, 2011

Yet Another Reason For Recess Appointments

What could Barack Obama do to improve his bargaining position the next time Republicans violate norms to gain leverage? He could make his own threats to fight back more believable -- by taking action now and using his power of recess appointment in a way that's probably legal but no one has tried before.

I argued over at the Plum Line yesterday that Barack Obama should fight back against Republican obstruction by making a recess appointment right now, even though House Republicans are preventing a proper recess through procedural gimmickry, and even though George W. Bush respected precedent and did not make any recess appointments when Senate Democrats used similar tactics in 2007-2008 (details there, and in this earlier post; see also Ari Berman's arguments). The argument I made over there, which I think is a reasonable one, is that there's a huge difference between action to block appointments taken by a majority of the Senate compared to action taken by the House, which has no Constitutional role in confirmations.

Regardless of any of that, and of the substantive advantages of actually having his nominees in place at the various agencies and departments, I think that at this point it would serve Obama well to show that he isn't afraid of GOP criticism, or even criticism from Washingtonians in general, on procedural stuff. This gets back to Richard Neustadt's idea of "professional reputation." People who deal with the president watch him carefully, and form conclusions about him: is he tough or weak? Is it dangerous to oppose him? Rewarding to support him? Can his word be trusted? And many other similar questions.

Obama has obviously been trying, either because his electoral gurus think it will help him in 2012 or because he actually believes it to position himself as the most reasonable person in Washington. Putting aside whether it actually might make any difference on the 2012 elections (and I think Steve Kornacki has a good rundown of that), it invites all sorts of damage to his bargaining reputation. Recess appointments under the current circumstances would be a good way out. He can still claim that he's the reasonable one, especially if he starts with relatively uncontroversial nominees -- I suggested the Commerce Secretary designee, John Bryson. But he could show that he's willing to counter creative GOP moves aggressively. And right now, it sure seems that his reputation for that sort of thing could use a bit of a boost.


  1. I completely agree with the concept. But instead of Commerce Secretary, he should start with the open seats on the Federal Reserve Board. After all, what more appropriate use of the recess power is there than making an appointment to the Fed at a time of 9% unemployment and increasing danger of a recession?

  2. So is there a procedure to force a recess? Or are you just saying he should make the appointment because there's no way to actually enforce that part of theConstitution?

  3. There are a couple different things (covered at the post linked to above). Bottom line is that the Constitution doesn't say what a recess is.


    It would be easier politically to start with the Commerce spot, because he has an appointee who is being blocked. Harder for him to claim it's GOP's fault on the Fed spots (yes, they killed one, but he hasn't appointed a replacement).

    Obviously, he should at least name some people to the Fed spots.

  4. If the House wants to stay in session and the Senate doesn't, doesn't the President have the authority to force them to adjourn?

    "and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper"

    Am I misunderstanding that clause? No one seems to mention it.

  5. Chaz,

    Again, see the links above. Short answer: no one knows, but probably (although the Senate would have to initiate it, presumably; Obama couldn't).

  6. I think he would be better off politically if he simply filled all his nominations. I'm beyond puzzled why Obama has let so many nominations linger for so long. He's conceding the high ground for no discernible reason.


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