[After the Pryor Recess Case, pre-Obama, I made these comments, which actually are fairly consistent with the below discussion.]
In Jay Wexler's new book, Odd Clauses, the Recess Clause has its own chapter. He notes, e.g., that it's problematic to suggest that a vacancy would have to immediately occur during the recess since that would mean that if it happened a day earlier, it would not count. And, what does "occur" and "happen" mean? Did they FIRST occur or happen then or continue to occur and happen then? Wexler and some others suggest the former, and that seems reasonable, but the majority opinion and practice has not been so limited. The literal text could go both ways.
And, someone referenced a "real" recess. I don't see the word "real" there. I think the op-ed cited by this post on this issue reasonable, taking a practical path that phony pro forma sessions don't count, since they don't give the President the chance to actually get an appointment confirmed. A similar practical approach would deal with that day before the recess death problem and address a concern of the dissent in the ruling cited by examining if a President had a real chance to have the nominee confirmed. But, would the Senate refusing to vote on the matter, particularly via filibuster, count as a "no"? Maybe so. And, would we let the question be handled politically, the literal possibility of one or the other side going overboard dealt with that way?
As noted by Wexler, provisions of the Constitution that the courts, particularly the Supreme Court, has not not decidedly ruled upon are interpreted differently over the years. Different administrations had different opinions, e.g., on just how long a "real recess" should be, one minimum being three days. Also, unlike originally, though the Senate might be out of session, it never is as hard to call them back (or are they likely to be gone as long; contrarily, there are a lot more offices to deal with these days) than originally. And, true emergencies (like an ambassador in the midst of peace talks vs. a judge, who also has the problem of perhaps being a short term appointment*) can be handled differently.
The subject is suddenly topical:
The text and changed reality of how things work these days provides wiggle room, so the best path would be to take a prudential approach that balances various interests. My concern with Judge Pryor was that the Democrats in the Senate used its filibuster power to deal with an imbalance of power involving a recalcitrant President [Obama, who actually received a majority of the vote, was much less partisan on judicial nominees, Republicans more hardball on filibusters] and a "majority" that represented a minority of the country. And, a short term judge was a concern. But, honestly, it is probably something of a stretch to argue that the appointment was unconstitutional as compared to bad policy, if in some ways that concern constitutional concerns. At the very least, too much water has gone under the bridge by this point on the issue.
The dissent (who has been sane on other issues vs. her 11th Circuit -- yes, the one that struck down the PPACA provisions -- though the other dissenter who would avoiding ruling on the matter at all probably had the best argument) is interesting reading, and one can decide. On the whole though, I think in this case, a "recess appointment" would be a reasonable path to take to provide a check against Republican abuse. I might not say this if they didn't play so dirty. If it was just a matter of a President trying to do an end around regarding a pending nomination being treated reasonably, I might think the recess power here was being abused, if perhaps still a political question.
Here, the spirit of the clause as well as separation of powers, checks and balances and republican (small 'r') government would be respected. Obama has to some on the left or critics of filibusters not done enough of this sort of thing. That's debatable, especially since this whole thing is all one big chess game (snide comments about him playing multidimensional chess aside) and you have to pick your battles. This would be a good one.
[And Also: Somewhat in the same category is the National Labor Relations Board, which can't function without these appointments. It is not merely filling long empty slots but slots necessary to run. Politically, these are also easily defended picks, which helps too. See, "Dilan Esper" comments in the "real recess" link.]
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* In fact, the second Chief Justice of the Supreme Court was a short term recess appointment while a few justices, including CJ Warren, later were confirmed after first being nominated in that fashion. But, after the 1950s, that practice was frown upon, Clinton using it to deal with a slot blocked for years, Bush for two judges, one who "stuck."
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.Judge Pryor recused, his recess appointment was upheld here, the majority/dissenting opinions providing interesting reading, including one which would not have the court rule on the legitimacy of one of its members here. I opined on the question at the time, but find myself more guarded about the question as a whole presently.
In Jay Wexler's new book, Odd Clauses, the Recess Clause has its own chapter. He notes, e.g., that it's problematic to suggest that a vacancy would have to immediately occur during the recess since that would mean that if it happened a day earlier, it would not count. And, what does "occur" and "happen" mean? Did they FIRST occur or happen then or continue to occur and happen then? Wexler and some others suggest the former, and that seems reasonable, but the majority opinion and practice has not been so limited. The literal text could go both ways.
And, someone referenced a "real" recess. I don't see the word "real" there. I think the op-ed cited by this post on this issue reasonable, taking a practical path that phony pro forma sessions don't count, since they don't give the President the chance to actually get an appointment confirmed. A similar practical approach would deal with that day before the recess death problem and address a concern of the dissent in the ruling cited by examining if a President had a real chance to have the nominee confirmed. But, would the Senate refusing to vote on the matter, particularly via filibuster, count as a "no"? Maybe so. And, would we let the question be handled politically, the literal possibility of one or the other side going overboard dealt with that way?
As noted by Wexler, provisions of the Constitution that the courts, particularly the Supreme Court, has not not decidedly ruled upon are interpreted differently over the years. Different administrations had different opinions, e.g., on just how long a "real recess" should be, one minimum being three days. Also, unlike originally, though the Senate might be out of session, it never is as hard to call them back (or are they likely to be gone as long; contrarily, there are a lot more offices to deal with these days) than originally. And, true emergencies (like an ambassador in the midst of peace talks vs. a judge, who also has the problem of perhaps being a short term appointment*) can be handled differently.
The subject is suddenly topical:
The White House confirmed Wednesday morning that President Obama will announce a recess appointment for Richard Cordray to run the Consumer Financial Protection Bureau at a speech in Ohio later today. Cordray was a well-liked Ohio Attorney General until last year, after he was toppled by the GOP midterm wave in 2010.Obama didn't use what might have been deemed a technical "recess" (between the last and this session of Congress) to do this, so has to go against those pro forma sessions referenced above. The Republicans are refusing to confirm anyone to the position unless the underlining law is changed, which is bad pool, and makes some "principled" attack on this move from them hard to take too seriously. Still, the vacancy was there before the recess and the Senate did act upon his nomination already. Such things have not blocked recess appointments in the past, and past practice has long been (there a mere decade deemed controlling) a major guide. Also, unlike some minor position, the Republicans are blocking the ability of a democratically passed law (gotten through the filibuster laden Senate) to work as it was intended.
The text and changed reality of how things work these days provides wiggle room, so the best path would be to take a prudential approach that balances various interests. My concern with Judge Pryor was that the Democrats in the Senate used its filibuster power to deal with an imbalance of power involving a recalcitrant President [Obama, who actually received a majority of the vote, was much less partisan on judicial nominees, Republicans more hardball on filibusters] and a "majority" that represented a minority of the country. And, a short term judge was a concern. But, honestly, it is probably something of a stretch to argue that the appointment was unconstitutional as compared to bad policy, if in some ways that concern constitutional concerns. At the very least, too much water has gone under the bridge by this point on the issue.
The dissent (who has been sane on other issues vs. her 11th Circuit -- yes, the one that struck down the PPACA provisions -- though the other dissenter who would avoiding ruling on the matter at all probably had the best argument) is interesting reading, and one can decide. On the whole though, I think in this case, a "recess appointment" would be a reasonable path to take to provide a check against Republican abuse. I might not say this if they didn't play so dirty. If it was just a matter of a President trying to do an end around regarding a pending nomination being treated reasonably, I might think the recess power here was being abused, if perhaps still a political question.
Here, the spirit of the clause as well as separation of powers, checks and balances and republican (small 'r') government would be respected. Obama has to some on the left or critics of filibusters not done enough of this sort of thing. That's debatable, especially since this whole thing is all one big chess game (snide comments about him playing multidimensional chess aside) and you have to pick your battles. This would be a good one.
[And Also: Somewhat in the same category is the National Labor Relations Board, which can't function without these appointments. It is not merely filling long empty slots but slots necessary to run. Politically, these are also easily defended picks, which helps too. See, "Dilan Esper" comments in the "real recess" link.]
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* In fact, the second Chief Justice of the Supreme Court was a short term recess appointment while a few justices, including CJ Warren, later were confirmed after first being nominated in that fashion. But, after the 1950s, that practice was frown upon, Clinton using it to deal with a slot blocked for years, Bush for two judges, one who "stuck."