Menu

Politics

BLOG

The Recess Appointment Gambit

Any elementary school teacher will tell you that recess is where the mayhem happens.

And Congressional recesses pose the potential for a type of political mayhem: recess appointments.

Republicans are watching closely to see if President Obama attempts to make what's called "recess appointments" in the coming days. In early December, Senate Republicans stymied the president by blocking his effort to install former Ohio Attorney General Richard Cordray as the head of the new and controversial Consumer Financial Protection Bureau. Cordray never scored an actual, up-or-down vote in the Senate. Most Republicans voted against a Democratic-led effort to cut off debate on Cordray's nomination. The vote was 53-45 but needed 60 to break the filibuster.

There are also questions as to whether Mr. Obama might attempt to go the recess appointment route to dispatch figures to the federal bench as the Senate failed to clear eight of the president's judicial nominees before the end of December. And some speculate that the president could also use recess appointments to place several individuals on the National Labor Relations Board (NLRB).

When asked about the possibility of recess appointments, White House spokesman Jay Carney told reporters that the Obama Administration wasn't "relinquishing any rights here."

Here's how this works:

Article II, Section 2 of the Constitution requires presidents to seek "Advice and Consent of the Senate" to "appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." That means the president must submit the names of everyone - ranging from a Supreme Court nominee to his pick to be ambassador to Romania, to his choice to lead the Indian Health Service - to the Senate for its approval. If the Senate won't grant "consent," the gig is up. The president is stuck and must come up with someone else who can navigate the Senate's shoals.

Unless the president successfully executes a recess appointment.

Article II, Section 2 goes on to state that "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."

This is a parliamentary shortcut for presidents. In the 18th and 19th Centuries, Congress might not meet for months at a time. Thus, the Founders didn't want to hamstring the government. It served no one to have key federal positions vacant for prolonged periods of time just because the Senate wasn't around to confirm a nominee. So, if Congress is in recess, the president could bypass the traditional and often rigorous Senate confirmation process and make an appointment. The caveat is that the term of that appointment would only run until the end of the next session of Congress.

This brings us to the issue of a "session" of Congress.

In modern times, each Congress is typically split into two sessions. For instance, the present Congress is known as the "112th Congress." The "first" session began in January, 2011. Unless there's another stipulation, the Constitution mandates that the "second" session will start January 3, 2012. The Senate met briefly on Friday with Sen. Jack Reed (D-RI) presiding. When it adjourned for the day, Reed declared "under the previous order, the Senate stands adjourned until 12 noon on Tuesday, January 3, 2012, and reconvenes for the second session of the 112th Congress at noon."

This could be the window of time where President Obama has his chance to maneuver a recess appointment.

Which could technically be called an "adjournment appointment."

Article I, Section 5 of the Constitution says that "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting."

That means that so long as both the House and Senate haven't jointly agreed to "adjourn" for a stretch longer than three days, then there appears to be no way the president could make a recess appointment.

The Republican-controlled House made it clear that it would not permit the Democratically-operated Senate to leave town for a period longer than three days this year. This was an effort to block Mr. Obama from making any potential recess appointments. In fact, many Republican lawmakers who were drafted to preside over the House sessions that convened every few days sometimes touted the fact that they were doing so to prevent President Obama from making such appointments.

So, without the consent of both chambers of Congress, the House and Senate have continued to meet at three day intervals for all of 2011. When legislative business finally wrapped in Washington for the year a few days ago, neither the House nor Senate offered what's called an "adjournment resolution." That would have allowed both chambers to abandon town for a longer period of time. Such an adjournment resolution would have made it easy for President Obama to make a recess appointment if he desired. But without both houses of Congress making an adjournment pact, there was no virtually no opportunity for the president to make a recess appointment.

Except potentially between the first and second sessions of the 112th Congress.

There's significant debate about whether this narrow window between the first and second sessions is the only chance a president could have to circumvent the traditional confirmation process and make a recess appointment.

Both Presidents Teddy Roosevelt and Harry Truman made recess appointments when Congress was away for fewer than three days, but no one has really tried it since.

However, nearly every president has made various types of recess appointments when Congress has been out for prolonged periods. Presidents of both parties have made many of these appointments after it was clear their nominee couldn't successfully secure the Senate's advice and consent. Some appointments were made for political gain.

President Dwight Eisenhower initially appointed Supreme Court Justice William Brennan during the Congressional interlude prior to the 1956 election. Brennan's recess appointment was an effort to court the votes of northeast liberals. President Bill Clinton appointed James Hormel as the Ambassador to Luxembourg during a Congressional recess. Clinton's move made Hormel the first openly-gay U.S. ambassador. President George W. Bush appointed John Bolton as the U.S. Ambassador to the United Nations after Democrats filibustered the pick.

So the Senate is on track to move between the first and second sessions of the 112th Congress. Just seven times in its history has Congress had an intersession of less than a day in its history. In January, 1996, Congress hermetically air-locked the end of the first session the 104th Congress up against the second session by a matter of seconds. The Senate convened for the final meeting of the first session of the 104th Congress at 11:55 am on January 3, 1996. The second session was scheduled to start at noon. Once the Senate finished its bookkeeping for that brief meeting, it adjourned...for all of 15 seconds. It then launched the second session of the 104th Congress.

Thus, in that instance, President Clinton would have needed to thread an exceptional recess appointment needle to ensconce a nominee to a position without the Senate's blessing. But he didn't.

Here, President Obama could potentially have a wider berth to make a recess appointment. Or he could follow the paradigm established by Teddy Roosevelt and Harry Truman and just appoint someone anyway.

After all, the White House has made it clear that it intends to intensify its attacks on Republicans in Congress. And bypassing the traditional confirmation process could be a way to easily ratchet up the tensions in the new year.

- FOX's Trish Turner contributed to this report.

FOX NEWS FIRST NEWSLETTER

Daily must-read stories from the biggest name in politics

Subscribe Get the full text emailed to you daily