New Congressional Research Report Looks at Recess Appointments

The U.S. Court of Appeals for the D.C. Circuit’s interpretation of President Barack Obama’s recess appointments to a federal labor board could have a “substantial impact on the future division of power between the president and Congress,” according to a new Congressional Research Service report.

The D.C. Circuit’s January 28 ruling in Noel Canning v. National Labor Relations Board, written by then-Chief Judge David Sentelle, restricted the power of the president to make recess appointments. The appellate court said the president can only make an appointment under "the recess" of the Senate.

If the U.S. Supreme Court upholds the decision, the ruling will mark a shift toward increased Senate control over the appointment of government officials, the CRS report said.

It would also decrease the frequency of presidential recess appointments. Since 1981, more than half of all recess appointments have been made in Senate recesses that were during a session, something the president would no longer be able to do, the report states.

“Thus, by limiting both the periods in which a President may make recess appointments, and the vacancies that may be filled by such appointments, the decision likely would strengthen the Senate’s “Advice and Consent” role, while restricting the President’s authority to make unilateral appointments,” the March 27 report states.

The CRS report, written by legislative attorneys Todd Garvey and David Carpenter, was first posted Friday at the blog Secrecy News, a publication of the Federation of American Scientists.

The central question the D.C. Circuit confronted is whether the U.S. Senate was in recess in January 2012 when Obama appointed three people to the labor board — personnel moves that enabled the board to continue to function with a quorum.

The appeals court determined that the Senate had not in fact recessed, rendering the presidential appointments an unlawful sidestep of the role of the Senate to review and vote on candidates for office.

Comments

[Darren McKinney]

In our modern age of jet travel and instant telecommunications, a sober, nonpartisan argument can be made for ending recess appointments altogether, unless truly "extraordinary Occasions" arise, as imagined by the Founders in the Constitution's Article II, Section 3. Such occasions today might include nuclear war or a natural disaster so devastating that a quorum of senators is killed or is otherwise physically unable to convene.

But barring such extraordinary circumstances, the president should be limited by statute -- in line with Article II, Section 2 -- to ordering the Senate to convene if its advice and consent is needed for an appointment (just as a governor convenes a special session of a state legislature to deal with an emergency or important, unfinished business).

Such a no-appointments-without-advice-and-consent arrangement would compel presidents to reach out to Senate leaders on both sides of the aisle prior to announcing appointment nominees, and this could only promote the likelihood of consensus nominees along with more genuinely constructive cooperation among our federal government’s two political branches – certainly more than we've seen in recent years. A bonus result of this arrangement would include a somewhat more moderate judiciary and administrative agencies. And who but extremists at either end of our political spectrum would oppose more moderation?