Thursday, January 12, 2012

Obama's Botched Recess Appointment Process

The Justice Department opinion supporting Barack Obama's recent recess appointments is out. I'll comment on the substance of it a bit later (I think it's fine), but first, a word on procedure. On the good side, it's very good that the opinion was publicly released. However, overall the administration, in my view, thoroughly botched the politics of this, and I wanted to get all of this out in a separate post from my comments on the

As several have already noted, the opinion is dated January 6, which is two days after the appointments were made, although the opinion states that it is only formalizing the informal guidance it gave to the White House prior to the appointments. Fine; as a non-lawyer, I have no particular expertise on the legal implications of all that. Politically, however, it seems quite stupid. It makes the whole process look shady and the opinion jury-rigged. And why? It's not as if the issues were developing quickly. Nor did anything unexpected happen in December and early January. Nor, for that matter, was there any particular rush that I'm aware of to get the appointments done in the 4th and not the 6th. I do understand releasing the opinion slightly after the initial controversy had died down if we take as a given that the opinion and the appointments were in fact close to simultaneous; it allowed the administration to focus it's message on the substance of the appointments, not the procedure. But there's really no excuse for the supporting opinion to be fully finished after the appointments were made.

However, it seems to me that the real mistake here isn't in having the Office of Legal Counsel opinion finished two days after the appointments; it was failing to have the opinion finished, published, and publicized six months ago, or more. The issue hasn't changed since the Republican House began their strategy of blocking recess appointments early last year, and the administration should have immediately struck back rhetorically and then, if the House persisted, by asking OLC for very public guidance. Doing that would have then allowed Obama to at best bargain with the Senate for a deal that would have moved things forward much earlier in the year, and at worst helped to highlight the unprecedented obstruction behind all of this and the (presumably) perfectly available options held by the White House. And that's not all: Obama should have been hard on the case of the 111th Senate in 2009-2010 about how slowly they were moving; should have threatened to begin using recess appointments early and often; and then should have gone ahead an made them if threats didn't do the trick. At least getting up to the pace previous recent presidents had maintained, unless Republicans dropped their filibusters.

Not to mention that Obama should have been -- should still be -- much, much more prompt about naming people for these positions in the first place.

What would the downside have been? Perhaps Republicans might have figured out some alternative strategy for blocking recess picks, but I'm not sure what is available. Republicans, of course, could have retaliated...but it's not easy to imagine what steps would be in the GOP's interest after presidential action that wasn't in their interest before it.

Barack Obama has handled all of this poorly from day 1. The recess appointments and the publication of the OLC opinion are a good, but tiny, step in the right direction, but just one step. By not placing a priority on filling executive branch positions, he's not only hurting the smooth functioning of the government (a fault he shares with Hill Republicans), but he's also forfeiting some of the legitimate consequences of winning the 2008 election, something that is unfair both to himself and those who worked for him.

OK, that's done. More on the opinion itself in a bit.


  1. You're right that Obama has erred by not prioritizing appointments. And you're right that the recent appointments are probably too little, too late.

    But I think you're reading too much into the poltiical implications of the timing of the OLC opinion. Whether the opinion was written the day after the recess appointments, or a year before, is an inside-baseball kind of issue that will resonate only with those people who are politically tuned in - and these people are, to say the least, not swing voters.

    Besides, had the administration publicized this opinion well in advance, it would have alerted the Congressional GOP as to his intentions - and maybe the GOP would have insisted on something more than "pro forma" sessions in that case.

    I'm not saying this was handled well. But I just don't see it influencing any votes in November.

    1. I agree that it wouldn't have affected votes in November. But I think they could have had a lot more people confirmed (or recess appointed) a lot sooner, which really is a big deal. Indeed, indirectly it might even have had an effect on votes (if the Fed appointments were made and confirmed promptly, and there's also a housing agency issue, and perhaps some of the stuff at Treasury, and etc.).

    2. I don't know how many vacancies there are in the federal government right now, but liberal blogs like to focus on the Fed, the FHFA, and perhaps a few more.

      You can get people into those jobs, but you have to have some idea of what they are supposed to do. And Obama doesn't. As I said before, he makes Herbert Hoover look energetic.

      Focusing on appointments -- great. But it is a symptom of a larger problem, which is this administration doesn't know how to govern - or how to lead.

      The only way to read the timing of the OLC memos is that they didn't even bother with a Plan B during the spring and summer. They knew they won't get combative until 2012.

  2. It looks like my previous comment didn't go through (so apologies if this is posted twice).

    Obama would have lost scores of judicial appointments (30+ district judges and 7+ circuit judges) had he telegraphed his intentions earlier. Senator Crapo specifically told the National Journal in May that most if not all future appointments would be blocked if Obama recess appointed Elizabeth Warren.

    And in addition to the fact that Obama would likely lose scores of judicial appointments if he telegraphed his intentions early (tilting the judiciary rightward for a generation), I'm not so sure he wants to use such recess appointments very robustly until the courts rule on their validity. It would create a lot of turmoil if 20 appointments' actions were reversed, as opposed to 4. Would Fed board decisions have to be reconsidered? What about FDIC or OCC regulatory actions? The legal uncertainty would be a big deal, even if you believe (as I do) that the appointments will ultimately withstand legal scrutiny.

  3. Pfft. Nobody cares enough about the process for it to hurt politically.

    I'm tired of hearing the know-nothing couchbound like the commenters at Agonist prattle on about how Stoopid Obama is for not doing exactly what they want when they want it or else they'll get another bag of Cheetos.

  4. Is there any substance to the notion that Obama hasn't been able to formally announce many appointments because no one's willing to go through all the vetting and disclosure to the administration as well as to Congress, unless they have a feeling or some minimal assurance that there's a good chance they'd have a chance to receive a fair vote? In other words, this might not be the admin's fault. Possible official appointees may prefer to stay unannounced and un-vetted until it seems like the process has any chance of moving forward.

    1. PF: at this point, shouldn't there be a few liberals out there willing to have their names used to make the point that the system is broken, while holding out no hope at all that they would get the job?

      I mean, Obama could nominate people for a bunch of these jobs that doesn't actually want the job, and would just continue on with their life, assuming that they would go nowhere. Yes, there's work involved in that, and yes, you'd have to be willing to have scumbuckets go digging up your past for months. Given that so many high-level appointments stay for relatively short periods anyway, wouldn't there be some who would be willing to take one for the team, solely for the purpose of demonstrating how messed up the system is?

      As I write this, I start to doubt myself, but I thought it an interesting enough thought to leave out there.

  5. This is nothing but a gut opinion, but my thinking is that Obama didn't want to declare "war" on Congress until it was time to campaign again. Having this pie fight over appointments throughout much of 2011 wouldn't have done his approval ratings any favors, and further hardened partisan actors on Capitol Hill against any effort to keep the lights on, much less 'progress'.

    In this respect, I view Obama letting the appointment issue fester is part of his larger strategy - let something build and build until it gets big enough for people outside DC to take notice. Now the GOP can whine about how unfair the President who's made the least recess appointments in recent history is being because he made 4 recess appointments - but they risk being made to look like the petty clowns they are, once people look at the facts on the ground.

    I'd argue that the same goes for the Obama administration's tough stance on deportations up until recently - no matter how many records Obama set in deporting illegal immigrants, the GOP continued to howl "NOT DOING ENOUGH". Now it's time to point out that you can't fix this problem by trying to deport 15 million people - let's examine the facts and see which policy voters prefer - "amnesty" or "a 20-foot tall thousand-mile fence and a war on immigration"

  6. Hey i have very less knowledge about politics and i am sure many other people who know what is right they will do it...


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