What happens when the president makes a recess appointment when the Senate is not technically on recess?
Nobody knows.
Continue ReadingBut President Barack Obama?s decision to jam the Senate and install three labor nominees and a consumer watchdog without a confirmation vote raises unsettled legal questions that could have a long lasting impact past his presidency.
?This is not a nice, clear cut area at all,? said Robert Dove, a former Senate parliamentarian, when asked about the implications of the president?s move.
Legal experts said Wednesday that there was no precedent for such recess appointments and that it would likely be put to the test in the courts by industry groups seeking to challenge regulations issued by the new Consumer Financial Protection Bureau, whose new head Richard Cordray received a recess appointment.
Obama, they said, had effectively reasserted the power of the executive branch in the ongoing confirmation battles over the president?s nominees that have been dominated by the Senate over the past half decade.
But in concluding he had broad authority to install his appointments, Obama risks seeing other nominees bottled by Senate Republicans who were privately vowing to retaliate against what they believe is a brazen power grab by the Obama administration. And if Republicans regain control of the Senate in the 2012 elections, it may be even harder for the president to win confirmation of controversial nominees if Obama wins a second term.
?What the president did today sets a terrible precedent that could allow any future president to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress,? Minority Leader Mitch McConnell (R-Ky.) said.
The gridlock was already bad in the Senate, but Obama?s moves could lead to a nuclear winter in a chamber where one senator could decide to bottle up virtually any presidential nomination any time in the future.
?It certainly will exacerbate the already bad relations between Republicans in Congress and President Obama, and I think this is a mistake,? former Senate Majority Leader Trent Lott (R-Miss.) said in an interview. ?I do think this will wind up creating ill will and end up in legal actions.?
The controversy started Wednesday morning when Obama named Cordray to serve as head of the Consumer Financial Protection Bureau created by the 2010 Dodd-Frank Wall Street reform law. Cordray had been successfully filibustered by Republicans last month who had demanded a series of changes to the new bureau in order to roll back its sweeping regulatory powers.
Ignoring the outrage from congressional Republicans, Obama took his defiance of the Senate a step further by announcing Wednesday afternoon that he would install three choices to serve on the National Labor Relations Board ? Sharon Block, Terence F. Flynn, and Richard Griffin ? as the Senate remained on break until Jan. 23.
Recess appointments are typically controversial since presidents are circumventing the Senate by naming someone to a spot until the end of a year?s session.
But Wednesday?s move took on a special significance because the Senate technically had not gone into recess. Instead, the Senate has been holding a series of ?pro forma? sessions every few days in order to technically avoid recessing. The sessions are only a few seconds long, where one presiding senator ? usually from nearby states like Virginia, Maryland and Delaware ? gavels the Senate in and out and goes home for the day.
Senate Majority Leader Harry Reid (D-Nev.) began holding pro forma session periodically in President George W. Bush?s second term in order to prevent controversial recess appointments like Steven Bradbury being named to the top ranks of the Justice Department. The Bush administration protested the move, but the president didn?t make recess appointments during the pro forma sessions.
When Republicans took control of the House, going into pro forma sessions became the norm since neither chamber can recess for longer than three days without the consent of the other.
But now that Obama has decided that pro forma sessions don?t matter much, Republicans warn there is no stopping presidents from undermining the Senate?s traditional advise-and-consent role.
?Any future president can recess appoint anyone he wants any time the Senate goes home for the weekend if this stands up in court,? said one GOP leadership aide.
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