Alberto Gonzales: On Appointments, Is the Senate Out to Recess, or Is Obama?

Last week, President Barack Obama made several recess appointments while the U.S. Senate was still in session.  Predictably, critics of the President assert he acted with extreme arrogance and outside the law requiring these appointees be confirmed by the Senate.  Supporters of the President defend the action saying it was necessary for the business of the American people.

The constitutional provision giving the President the power to make recess appointments was adopted at a time when the Senate was often in recess for extended periods of time, travel was by horse and buggy and there were no telephones or internet.  The framers were understandably concerned that if a vacancy occurred in a key government position during a recess, important duties would go unmet for a period of time.

The President’s action has poisoned the well for future confirmations.

It is not in the interest of any President to make a recess appointment to an agency position.  First, a recess appointee is weakened by virtue that their term of office expires at the end of the next congressional session.  Second, and more importantly, a confirmed appointee has the imprimatur of the U.S. Senate.  This places the appointee in a stronger position in dealing with Congress and career agency employees with respect to long-range, bold initiatives that may be important for the American people.

Senators, either unhappy with the President or unsupportive of the President’s nominee, recently have used procedural tactics to deny a nominee a hearing or an up or down floor vote.  As White House Counsel, I spent many hours consulting with Senators to give President George W. Bush’s judicial nominees a vote.  Often, significant agency and judicial positions remained vacant for months and, in some cases, years.  In response, President Bush believed it necessary to make targeted recess appointments, but he did so only when the Senate was in recess.

President Obama won the right in 2008 to nominate to fill vacancies.  When he does his job the Senate should reciprocate and provide an up or down vote after receiving all the necessary paperwork and background information for a nominee.  When the Senate fails to act, the President has the authority to make a recess appointment if the Senate is in recess.

Here, because it appears that was not the case, the President’s action has poisoned the well for future confirmations.  And, if as reported, the White House did not provide the completed paperwork for these nominees to the Senate, then the President’s public explanation for bypassing the Senate further damages the public trust in our government.

Alberto R. Gonzales is the former United States Attorney General and the former Counsel to President George W. Bush.  He is currently the Doyle Rogers Distinguished Chair of Law at Belmont University, Of Counsel at the Nashville law firm of Waller Lansden, and a regular columnist for Fox News Latino.

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