For all the brouhaha surrounding President Obama's recess appointments this week of three new members for the National Labor Relations Board and of Richard Cordray to serve as director of the Consumer Financial Protection Bureau, what is most surprising - and most welcome from a constitutional perspective - is the President's restraint in his use of the recess appointment power. What's scary is the precedent it may set for other Administrations' less judicious use of that power.
Article II of the Constitution authorizes the President "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." The Constitution does not require that the recess be of any particular length or for any particular reason. The Senate was out on a three-day hiatus when President Obama made his appointments. His act squares neatly with the constitutional text.
Some observers may be confused by the Article I provision stating: "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . ." Because the House (at the behest of Republican Senators) is currently not allowing the Senate to adjourn for more than three days, the Senate has been going through a repeated ritual of convening in "pro forma" session every third day, but without any capacity to do legislative business. (Harry Reid invented this technique in 2007 to forestall recess appointments by George W. Bush.) But there is no constitutional requirement that a Senate recess triggering the President's appointments power be an adjournment to which the House of Representatives has consented.
The most colorable objection to the Obama recess appointments is that they arguably flout a norm, or informal custom, of interbranch interaction. That is, Presidents ordinarily do not resort to their recess appointment power during short recesses. It is understood on both sides that the Framers originally contemplated a Congress that would convene only a few months a year. They gave the President a power of recess appointment so that he could keep the government functioning effectively even when federal legislators had returned to their far-flung farms, law offices, or other places of non-government business. Recognizing that the recess appointments power was thus conferred for a limited purpose and not in order for Presidents to lightly circumvent the Senate's confirmation role, Presidents have typically - though not invariably - used their recess appointment power sparingly. (A good nonpartisan account appears here.)
As I argued in my 2009 book, Madison's Nightmare, norms of this sort are essential to the effective functioning of any separation of powers system - perhaps to any non-dictatorial system of government at all. A system of separated powers can work only if each branch refrains from pressing its powers to the utmost limits of textual plausibility under a written Constitution. However aggressive the interbranch competition for policy influence, each branch must ultimately respect the purposes and capacities that the Constitution assigns to its sister branches. From the end of the McCarthy era through the end of the Carter Administration, Congress and the executive typically acted in this spirit of mutual restraint, even as the country navigated its way through the upheavals of Vietnam and the civil rights revolution.
Since the Reagan Administration, however - and most especially since the second Reagan Administration - these norms have been under steady attack. The attackers usually - though not invariably - are right-wing Republicans who quite correctly view a checks and balances system as an obstacle to their capacity to jerk our national government onto a profoundly more conservative course than is warranted by public sentiment.
For example, nothing in the Constitution explicitly forbade the Reagan Administration to circumvent the appropriations process and fund its own foreign policy in Central America. Nothing in the Constitution explicitly rejects lying about a sexual affair as a ground for impeachment. Nowhere does the Constitution impose a time limit on Senate consideration for routine executive and judicial appointments. But the Iran-Contra affair, the Clinton impeachment, and the GOP use of the Senate filibuster to impose unprecedented delays in staffing both the executive and judicial branches nonetheless stand out as breaches of constitutional governance. These practices may or may not be unconstitutional, but they exhibit a glaring disrespect for the purposes and capacities assigned to non-GOP-controlled government institutions.
Seen in this light, President Obama's recourse to his recess appointment power was really the only plausible way of responding to a pattern of Senate behavior - induced by the Republican minority - that paid no regard to his authority and obligation to appoint officers of the United States to a host of positions critical to effective governance. It is notable that he targeted his latest appointments with just that limiting principle in mind - that is, he filled vacancies only in agencies that were utterly disabled from carrying out their legally assigned missions because leadership nominations were languishing in the Senate.
Constitutionally, President Obama could have gone further. He could have filled other executive branch positions that the Senate has been holding hostage for reasons unrelated to the merits of the nominees. He could have filled judicial vacancies. He could have used his power under Article II to adjourn Congress, thus creating his own recess of the Senate during which he could make these appointments.
That President Obama has not gone to these lengths demonstrates a commendable inclination to continue to respect the Senate's confirmation power. It also continues a tradition of making recess judicial appointments only in extremely rare circumstances, in large part because - although such appointments are constitutional under the text - their limited duration stands in tension with the Framers' conspicuous commitment to judicial independence, embodied in the constitutional guarantee of lifetime tenure.
Some Senate Republicans have apparently reacted to President Obama by threatening to be even less cooperative with the executive branch. But it's hard to see how much less cooperation they could offer. The intransigence of the House Tea Party Caucus, plus the GOP Senate minority's filibuster abuse, has rendered the 2011 session of Congress the least productive in terms of non-trivial legislation since the late 19th century. The White House has correctly discerned that the public has tired of this obstinacy. As Larry Lessig has said, our uncooperative Congress has earned approval ratings probably lower than the approval ratings of Parliament in the thirteen colonies on the eve of the American Revolution. (One suspects, if the public were yet more familiar with the bills the House was trying to pass, its opinion would actually be even lower.) For this reason, the White House is surely undaunted by the prospect of congressional hearings examining its appointments powers. The charts and graphs the Administration can produce illustrating the current Senate's unprecedented delays for even the most routine appointments would make for impressive video.
The real danger in the latest recess appointments is that subsequent Presidents may well use President Obama's expansive understanding of "recess" to staff courts and agencies with controversial nominees who they know Senators are opposing on the merits. In a fine analysis of the situation, Larry Tribe has argued that the Cordray and NLRB appointments do not "free the president to make recess appointments whenever the Senate breaks for lunch or takes routine weekend vacations that conceal no objective scheme to frustrate presidential appointments." He concludes that "the president can resort to recess appointments of this kind only in instances of transparent and intolerable burdens on his authority. Article II charges him to 'take care that the laws be faithfully executed'; this duty, combined with appointment and recess-appointment powers, requires an irreducible minimum of presidential authority to appoint officials when the appointments are essential to execute duly enacted statutes."
I have two related fears about this speculation, however. The first is that, although Professor Tribe has stated an excellent limiting principle for the exercise of the recess appointments power, it is not clear that courts would enforce it. Federal courts typically resist getting in the middle of power clashes between the elected branches, and sorting out which recess appointments are and are not proper under even a normatively compelling (and easy to enforce) constitutional principle may simply be a job they are unwilling to do.
My second fear is based on the right-wing's willingness - even eagerness - to accelerate whatever innovations in interbranch struggle that the Democrats originate. The Democrats want to filibuster appellate court nominees? Fine, the Republican will filibuster trial court nominees. A Democratic Senate majority comes up with an "in forma session" ruse to try to stop a Republican President from making recess appointments? Fine, a GOP Senate minority will seek to accomplish the same result by enlisting the GOP House majority to stop the Senate majority from adjourning. Talk about using a constitutional power for an unintended purpose!
President Obama's most recent recess appointments are themselves a modest counterpunch against attempts by House and Senate Republicans to subvert his capacity to perform his constitutionally assigned role. If the Senate wants the President to back off, it should start performing its confirmation role responsibly. If recent history is any guide, however, Republican leaders - who no doubt hope to control both ends of Pennsylvania Avenue in 2013 - will be thinking up rather different contingency plans should divided government persist. These plans are likely to intensify an already corrosive breakdown of interbranch norms of respect and cooperation that are the key to effective governance.
Follow Peter M. Shane on Twitter: www.twitter.com/petermshane