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Obama Recess Appointments

Craig Becker NLRB Recess Appointment

In yet another way President Obama is like his immediate predecessor, he’s shamelessly abusing the recess appointment power to bypass Senate intransigence.

President Obama, making a muscular show of his executive authority just one day after Congress left for spring recess, said Saturday that he would bypass the Senate and install 15 appointees, including a union lawyer whose nomination to the National Labor Relations Board was blocked last month with the help of two Democrats.

Coming on the heels of Mr. Obama’s big victory on health care legislation, Saturday’s move suggests a newly emboldened president who is unafraid to provoke a confrontation with the minority party.

Just two days ago, all 41 Senate Republicans sent Mr. Obama a letter urging him not to appoint the union lawyer, Craig Becker, during the recess. Mr. Obama’s action, in defiance of the Republicans, was hailed by union leaders, but it also seemed certain to intensify the partisan rancor that has enveloped Washington.

“The United States Senate has the responsibility to approve or disprove of my nominees,” Mr. Obama said in a statement. “But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.”

I haven’t followed the Becker controversy enough to have a strong opinion, although if the entire opposition party and two members of the president’s own party think an appointment for something that’s supposed to be an impartial review board is too biased to be trustworthy, they likely have a point.   As to the other fourteen, they’re a mixed bag.   Jen Psaki, writing for the White House Blog, contends, “Many of these fifteen individuals have enjoyed broad bipartisan support, but have found their confirmation votes delayed for reasons that have nothing to do with their qualifications. It has more to do with an obstruction-at-all-costs mentality that we’ve been faced with since the President came into office.”  That’s self-serving but plausible.

Still, while the president has a right to feel frustrated, the usual procedure has been to make some sort of deal.  Generally, the most controversial appointee or three is sacrificed and the opposition party is allowed to have input in the process, essentially reversing the appointment procedure and allowing the Senate to quasi-appoint some noncontroversial folks.   Instead, Obama has continued a recent trend of abusing the recess appointment process, which exists solely because the Framers envisioned Congress being out of session for months at a stretch, not as a backdoor way to bypass the Senate when it’s on hiatus for a few days.

John Bolton, anybody?

Indeed, back in August 2005, a promising young Senator from Illinois, Barack Obama, said of Bolton’s recess appointment as UN ambassador, “To some degree, he’s damaged goods. I think that means we’ll have less credibility and, ironically, be less equipped to reform the United Nations in the way that it needs to be reformed.”   Less than five years later, however, he’s justifying his decision in words eerily reminiscent of Bush’s: “This post is too important to leave vacant any longer, especially during a war and a vital debate about U.N. reform.”

To be clear:  I’m not saying Obama is doing anything unprecedented or particularly worthy of criticism.  Rather, I’m pointing out yet another data point, as if another were needed, confirming the thesis that presidents seldom give up extraordinary uses of power once predecessors get away with it.  Obama is 44th in line on that one.   And, to his credit, Obama resisted the temptation to recess appoint Dawn Johnsen as head of OLC.

Although, as Kevin Drum points out, Obama has done something intriguing here:

Years ago, after Republicans filibustered a Carter nominee to the NLRB, the two parties made a deal:the board would have three appointees from the president’s party and two from the other party. So after he took office Obama nominated two Democrats and one Republican to fill the NLRB’s three vacant seats and got support from a couple of Republicans on the HELP committee for the entire slate. But when it got to the Senate floor John McCain put a hold on Becker, and his nomination — along with the others — died.

Fast forward to today and Obama finally decides to fill the board using recess appointments. But what does he do? He only appoints the two Democrats. This is not what you do if you’re trying to make nice. It’s what you do if you’re playing hardball and you want to send a pointed message to the GOP caucus.You won’t act on my nominees? Fine. I’ll appoint my guys and then leave it up to you to round up 50 votes in the Senate for yours. Have fun.

Tangentially, this is also another opportunity to bang a drum I’ve been banging for a while:  Far, far too many positions in our government are subject to presidential appointment and Senate confirmation.  Wouldn’t we be better off with an NLRB that consisted of professional civil servants, drawn from the Senior Executive Service, with rich experience but no obvious ties to organized labor or the Chamber of Commerce?   Ditto, for that matter, the Equal Opportunity Employment Commission and the Customs and Border Protection Division of DHS?  Politicizing those offices undermines their perception as fair arbiters.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. just me says:

    Looks like Obama is just as hypocritical as any other politician when they go from being the minority to the majority to the guy in the white house.

    Of course the difference here is that the MSM will laud the appointments and conveniently forget how much they opposed them when Bush was doing them.

    As to your point about the sheer number of presidential appointees, I think you are probably correct in that there are probably a lot of jobs that are filled by appointees that could just as easily be filled by civil servant/career employees.

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  2. laura says:

    It isn’t possible to have bipartisan support for anything when the Republicans have determined, as a bloc, to block anything the Democrats propose regardless of the merits.

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  3. Rick DeMent says:

    Still this is a matter of degree. John Bolton was controversial in the sense he was was being appointed to a post at an institution he didn’t even think should exists. He was truly a controversial figure on the merits.

    Which Obama appointees are controversial in this sense? The difference seems to be that the GOP is blocking appointees they don’t have any specific or coherent objections to. Come on James this isn’t even in the same league. And pretending it is makes you look either foolish or obtuse.

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  4. just me says:

    I seem to recall the democrats blocking a lot of judges just because, when Bush was making appointments.

    And I think the labor union guy had to have been of some controversy if democrats on the committee opposed him.

    And frankly I remember many a democratic senator during the Bush years blocking appointments with blue slips and other means because they didn’t want Bush to make the appointment.

    How soon everyone forgets.

    Personally I don’t care much about recess appointments. I don’t think much of this matters in the end, controversial or not, generally if the person meets basic qualifications they generally don’t muck it up too badly-appointments have long been an area where the minority could raise a stink and to act as if the GOP is doing something knew or more atrocious is ignoring history and making excuses for your own guy.

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  5. James Joyner says:

    Which Obama appointees are controversial in this sense? The difference seems to be that the GOP is blocking appointees they don’t have any specific or coherent objections to. Come on James this isn’t even in the same league. And pretending it is makes you look either foolish or obtuse.

    Craig Becker is a union lawyer; Republicans and two Democrats object that his ties to labor make him a poor choice for a board that arbitrates labor relations.

    Bolton shared the Bush administration view that the UN was a pain in the ass and was an obstacle to US interests.

    They’re quite comparable.

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  6. [...] course, as James Joyner points out, Obama is merely following the practice of his immediate predecessor: I’m not saying Obama is doing anything unprecedented or particularly worthy of criticism.  [...]

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  7. Kevin says:

    Yeah, spot-on. ‘Two words: John Bolton’ pretty much nails it; that, and the “damaged goods” quote.

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  8. Raoul says:

    You are on fire. Four consecutive posts I agree with. I will add Bolton was a bafoon.

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  9. wr says:

    That the notion of having someone who actually believes in the concept of organized labor sit on the NLRB seems controversial just shows how far right the nation’s discourse has been shoved.

    And Becker’s nomination was approved by the full senate on a 52-33 vote, but since Republicans routinely filibuster every nomination, he could not take the position which a majority of senators felt he deserved.

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  10. just me says:

    And Becker’s nomination was approved by the full senate on a 52-33 vote, but since Republicans routinely filibuster every nomination, he could not take the position which a majority of senators felt he deserved.

    Bolton would have been approved by better than 50% as well, but the democrats blocked the nomination.

    I think the irritating thing here for me isn’t so much that Obama made the appointments, but that he made the appointments as if his decision was somehow special and that democrats hadn’t been just as obstructive when it came to appointments in the past.

    I think pretending that democratic opposition to various Bush appointees was based solely on a belief the person was incapable of doing the job while the GOP obstructs for political purposes only is ridiculous. It’s politics and in politics the minority party does this kind of stuff all the time-it is delusional to somehow think only the GOP obstructs while the democrats are somehow altruistic and have wonderful motives.

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  11. schooner says:

    “To put this in perspective, at this time in 2002, President Bush had only 5 nominees pending on the floor. By contrast, President Obama has 77 nominees currently pending on the floor, 58 of whom have been waiting for over two weeks and 44 of those have been waiting more than a month. And cloture has been filed 16 times on Obama nominees, nine of whom were subsequently confirmed with 60 or more votes or by voice vote. Cloture was not filed on a single Bush nominee in his first year. And despite facing significantly less opposition, President Bush had already made 10 recess appointments by this point in his presidency and he made another five over the spring recess.”

    Yeah, exactly the Democratic obstruction….

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  12. Grewgills says:

    “There will be no cooperation for the rest of the year,” he told an Arizona radio station. “They have poisoned the well in what they’ve done and how they’ve done it.”

    This came from McCain shortly before the recess appointment. Republicans are running on giving not one inch on anything. What do you think the odds are of getting any non-recess appointment this year?

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  13. Wouldn’t we be better off with an NLRB that consisted of professional civil servants, drawn from the Senior Executive Service, with rich experience but no obvious ties to organized labor or the Chamber of Commerce?

    Not necessarily. In fact, probably not. Where is this rich experience going to come from that has no ties to organized labor or business interests? Why do you think that hiring from the ranks of the SES somehow removes politics from the equation, especially for a bureaucracy that cannot avoid making political decisions?

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  14. steve says:

    What schooner said. I am disappointed that you did not put these numbers in context James. Also, I read your Atlanticist. I thought you were a foreign policy guy. You really think sending Bolton to the UN, an institution he freely denigrated, is the same as hiring a labor attorney? When a Republican is POTUS, you get someone from the business side. When a Dem is in charge, you get someone from the labor side. IOW, this is an expected nomination.

    Would you support sending someone to, say Egypt, who has publicly stated he dislikes the country? Can you think of many foreign policy people who are more unilateralist (is that a word?) than Bolton?

    Steve

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  15. michael reynolds says:

    And yet my appointment as Undersecretary of Agriculture for Truffles, Caviar and Foie Gras still languishes.

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  16. john personna says:

    “To put this in perspective, at this time in 2002, President Bush had only 5 nominees pending on the floor. By contrast, President Obama has 77 nominees currently pending on the floor [...]“

    Perhaps I’m too easily swayed by mere numbers … by I’m swayed.

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  17. Zelsdorf Ragshaft III says:

    To those of you who think John Bolton was wrong about the UN, I hope your young daughters are left in the hands of some of their peace keepers. I appears progressives are not only intellectually dishonest they are also immature. I do not have the time to explain the difference between sending an ambassador to the UN who thinks that body is useless and appointing a shill for labor to a position that calls for neutrality. Anyone who cannot discern the difference should not be instructing those who come to learn. If Obama thinks he is going to have a hard to governing with a minority of Republicans in both houses of congress, just wait until November 2010 when they win back both the house and senate. All it will take is for 51 Republicans in the senate to vote guilty.

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  18. Zelsdorf Ragshaft III says:

    To those of you who think John Bolton was wrong about the UN, I hope your young daughters are left in the hands of some of their peace keepers. It appears progressives are not only intellectually dishonest they are also immature. I do not have the time to explain the difference between sending an ambassador to the UN who thinks that body is useless and appointing a shill for labor to a position that calls for neutrality. Anyone who cannot discern the difference should not be instructing those who come to learn. If Obama thinks he is going to have a hard to governing with a minority of Republicans in both houses of congress, just wait until November 2010 when they win back both the house and senate. All it will take is for 51 Republicans in the senate to vote guilty.

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  19. just me says:

    If Obama thinks he is going to have a hard to governing with a minority of Republicans in both houses of congress, just wait until November 2010 when they win back both the house and senate. All it will take is for 51 Republicans in the senate to vote guilty.

    Personally I suspect Obama will have an easier time governing if the GOP controls one or both houses of congress, because it would actually require the parties to work together.

    I am still not really convinced the GOP will gain either, but I think government will work better with a divided government.

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  20. An Interested Party says:

    If Obama thinks he is going to have a hard to governing with a minority of Republicans in both houses of congress, just wait until November 2010 when they win back both the house and senate. All it will take is for 51 Republicans in the senate to vote guilty.

    Why don’t you share with us exactly what mind-altering substances you have consumed, as, if your writing is any indication, said substances are quite potent…

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  21. tom p says:

    I haven’t followed the Becker controversy enough to have a strong opinion, although if the entire opposition party and two members of the president’s own party think an appointment for something that’s supposed to be an impartial review board is too biased to be trustworthy, they likely have a point.

    So,let’s see, 42% get to decide who is extremist? Reagan was extremist. who says? I and 41% of the rest.

    C’mon James, you can do better than this.

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  22. OKay says:

    Like the previous administration? ha-ha-ha….. Bush sf’d the senate with a recess appt after it voted DOWN Bolton. Get acquainted with some facts.

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  23. Gustopher says:

    I’d rather Obama announced his intention to use recess appointments 60 days ago, and given the Senate fair warning that they had to do their “advise and consent” thing.

    But, with the Republicans obstructing everything, I doubt it would have made a difference, except to the other 61 nominations, who also should have been given recess appointments.

    The Republican nominee to the NLRB should, of course, not be given a recess appointment.

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  24. just me says:

    Like the previous administration? ha-ha-ha….. Bush sf’d the senate with a recess appt after it voted DOWN Bolton. Get acquainted with some facts.

    The democrats filibustered Bolton and the vote for cloture failed there was never an actual up or down vote taken (and cloture had support of 54 senators, although technically 55 because Frist had to vote no). Bolton resigned in 2006 because Chafee was unsupportive of the nomination, lost his election anyway and the democrats were going to take over in January where he most certainly would not have been confirmed. Maybe you should get acquainted with the facts.

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  25. wr says:

    Gustopher — Obama did announce his intention before the last recess, when the Rs were sitting on huge numbers of nominees. Quickly they passed a handful, but then stopped completely again.

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  26. [...] James Joyner: Still, while the president has a right to feel frustrated, the usual procedure has been to make some sort of deal.  Generally, the most controversial appointee or three is sacrificed and the opposition party is allowed to have input in the process, essentially reversing the appointment procedure and allowing the Senate to quasi-appoint some noncontroversial folks.   Instead, Obama has continued a recent trend of abusing the recess appointment process, which exists solely because the Framers envisioned Congress being out of session for months at a stretch, not as a backdoor way to bypass the Senate when it’s on hiatus for a few days. [...]

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  27. Steve says:

    Obama has continued a recent trend of abusing the recess appointment process, which exists solely because the Framers envisioned Congress being out of session for months at a stretch, not as a backdoor way to bypass the Senate when it’s on hiatus for a few days.

    He didn’t use the it as a backdoor way to bypass the Senate when it’s on hiatus, he used it as a backdoor way to bypass the Senate when it refused to vote on the nominees, which is something I bet the founders never envisioned.

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