Outside the Beltway

What’s Good For The Partisan Goose Is Good For The Partisan Gander

House Republicans are being criticized for utilizing a tactic they learned from Senate Democrats.

Doug Mataconis · Wednesday, August 3, 2011 · 9 comments

Matthew Yglesias takes note of the fact that the House Republicans are taking advantage of a parliamentary procedure to prevent President Obama from making recess appointments while Congress is out of town for the month of August:

Following the House, the Senate will hold a series of “pro forma” sessions over the next month, effectively blocking President Barack Obama from making any appointments during Congress’ August recess. That means Obama won’t be able to seat his pick to lead the new Consumer Financial Protection Bureau, former Ohio Attorney General Richard Cordray, whose nomination Republicans have vowed to oppose until Obama makes changes watering down the agency’s authority. After passing the debt limit legislation on Monday, House leaders announced they would hold pro forma sessions through August, a procedural move that forced the Senate to follow suit. The Constitution requires that for either chamber to take more than a three-day break, the other chamber must give its approval.

Yglesias comments:

I find that my mood around this fluctuates. Mondays and Wednesdays I’m frustrated by lefties who seem to see the unprecedented Republican obstruction the President is dealing with as part of an 11-dimensional chess game through which Obama “really” wants his progressive initiatives to be frustrated at every term. On Tuesdays and Thursdays I think this is the most damning critique of all. In the face of an opposition that’s been relentlessly innovative, the White House has been staggeringly uncreative. Rather than a game of tit-for-tat, the Republicans seem to be inside the administration’s decision loop, heading off their retaliatory options before the President has even exercised them.

There really isn’t much the White House can do, however, at least not in this situation. If Congress isn’t in recess, then the President’s power to make recess appointments does not come into play. By labeling it “Republican obstruction,” however, Yglesias seems to have forgotten that this is a practice that started well before John Boehner became Speaker of the House of Representatives. If Yglesias wishes to find the roots of the “obstruction” that the GOP is allegedly engaging in here, then he need do no more than go back to 2007 when there was a Democratic Congress and a Republican President:

Senate Majority Leader Harry Reid has a little trick up his sleeve that could spell an end to President Bush‘s devilish recess appointments of controversial figures like former United Nations Ambassador John Bolton. We hear that over the long August vacation, when those types of summer hires are made, Reid will call the Senate into session just long enough to force the prez to send his nominees who need confirmation to the chamber. The talk is he will hold a quickie “pro forma” session every 10 days, tapping a local senator to run the hall. Senate workers and Republicans are miffed, but Reid is proving that he’s the new sheriff in town.

Reid and the Senate Democrats used this process throughout the remainder of the Bush Administration, effectively stopping his ability to make recess appointments for the remainder of his term. At the time, many on the left, such as Steve Benen, Pamela Leavey, and Ron Beasley were pleased with the Senate Majority Leader’s use of procedural rules to hamstring a President they opposed. While I haven’t been able to find any contemporaneous statements regarding Reid’s parliamentary maneuvering by Yglesias, I have to wonder if he would consider it to be an example of the same kind of “obstruction” that he apparently considers this recent Republican move. Having been shown the way by the Senior Senator from Nevada, is it all that surprising that the GOP would utilize the same tactic when it was to their advantage?

Of course, as James Joyner noted when Reid tried his maneuver, it’s not entirely clear that keeping Congress open via pro forma sessions would be enough to stop a recess appointment:

As FindLaw notes, “How long a “recess’ must be to be actually a recess, a question here as in the pocket veto area, is uncertain. A ‘recess,’ however, may be merely ‘constructive,’ as when a regular session succeeds immediately upon a special session.” So, even if Bush proceeds as if these sham “sessions” constitute a session under the meaning of the Constitution, he could presumably appoint people during these interim periods, regardless of how short.

Bush never chose to test this theory but, if he had, it’s not entirely clear how a Court would have come down on the issue, or if they would’ve even decided to hear the case at all.

Of course, what this does bring to mind the observation that the Presidential power to make recess appointments, although it remains in the Constitution, is seemingly outdated:

The original purpose behind granting the President the power of recess appointments was to get around a practical problem. At the time the Constitution was written, short sessions and long periods of adjournment were the meeting pattern expected for Congress: the early Senate would routinely be in recess from March through December. Moreover, sessions were sometimes delayed because difficult travel conditions meant waiting a long time for enough Senators to arrive to assemble a quorum. The power given the President to make recess appointments was granted so that he wouldn’t be without top officials of government for long periods while waiting for the Senate to assemble.

Barring some natural or man-made disaster that prevents Congress from meeting for an extended period of time, there’s little practical reason for Presidents to appoint officials subject to confirmation without going through the confirmation process. In fact, as James notes in the 2007 post linked above, the long history of the recess appointment power indicates that, even in the days when there were long gaps between Congressional sessions, it was used more often for political than practical purposes. In more recent years, the process has been used more frequently, and for more high-profile positions, than one might suspect. President Eisenhower, for example, utilized recess appointments to appoint three Supreme Court Justices — Earl Warren, William Brennan, and Potter Stewart. More recently, President Reagan made 243 recess appointments over eight years, President Bush (41) made 77 recess appointments over his one term, and President Bush (43) made 170 recess appointments in his eight years, although most of those were before the Democrats took control of Congress in the 2006 elections.

How many of these appointments were actually necessary from a practical point of view? Very few,  I would imagine. Instead, the recess appointment power has been used to put nominees in office and then challenge Congress to try to remove them, something which changes the confirmation game considerably. This unlikely to end, of course, because just as House Republicans have learned from Harry Reid, Presidents have learned how to exercise the recess appointment power to their benefit from their predecessors.

Finally, it’s worth noting that what we’re seeing play itself out here is really little more than the ongoing battle for power between the Executive and Legislative Branches. Even in times when both are controlled by the same party, Congress is jealous of its power to approve Presidential appointees. It was only a matter of time before someone figured out how to stop the President from making an end run around the confirmation process.