Blog Post #9
Article II § 2 of the U.S. Constitution anticipates the president’s need to appoint a member of the executive branch while Congress is out of session. It reads:
“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.”
The use of the power dates back to the early days of the republic. This made a great deal of sense, of course, because legislative sessions were shorter and more infrequent than they are now. In addition, communications and travel were much more difficult. Together, this meant that, in the absence of the recess appointment power, important positions could be left empty for long periods of time.
Of course, this process has, like most things, become more politicized over time. Presdients who were unable to get their nominees confirmed by a hostile Senate would often use the recess appointment as a way to circumvent the Senate’s “advice and consent” role. But the Senate learned to fight back against this. In the waning years of George W. Bush’s final term, Senate Majority Leader Harry Reid regularly held pro forma sessions during any breaks in order to prevent Bush from using his recess appointment power. Something similar happened during the winter break between 2011 and 2012, when the Republican-controlled House of Representatives declined to assent to a recess. Instead, both the House and the Senate held pro forma sessions, this time preventing President Obama from making appointments.
This did not stop Obama from making appointments to the controversial Consumer Financial Protection Bureau and the National Labor Relations Board. On the advice of White House Counsel, the President argued that pro forma sessions were an unconstitutional attempt to block the use of an explicit power given to the executive by the Constitution. The NLRB appointment was challeneged in court, and the Supreme Court heard the case in NLRB v. Noel Canning et al. (2014). For a Plain English summary of the case, read this SCOTUSblog article.
Paper Topic #9: What is the impact of the Court’s recess appointment ruling on the balance of power between Congress and the President when it comes to administrative law? Was the Court just cleaning up the mess that came from years of politicizing the recess appointment power?
Suggested Reading: Corley, Pam. 2006. “Avoiding Advice and Consent: Recess Appointments and Presidential Power.” Presidential Studies Quarterly, 36(4): 670-680.