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Victor Williams

Victor Williams

Posted: September 20, 2010 11:42 AM

As Barack Obama prepared for his CNBC-hosted Investing In America Townhall, perhaps he studied investor-guru Bill Gross's "new normal" thesis. With his creative advisory appointment of Elizabeth Warren to "stand-up" the Consumer Financial Protection Bureau, President Obama seems to have recognized a similar "new normal" in federal appointments.

PIMCO's Bill Gross coined the phrase "new normal" so investors could better understand the broken economy and unprecedented economic challenges facing the nation. Gross's "new normal" thesis explains how to invest despite the harshest conditions.

So it is as Obama attempts to govern in an age of a broken Senate and unprecedented confirmation obstruction. Long-term partisan delay and obstruction is the harsh new reality. We are twenty months into the Obama presidency and the government remains critically understaffed. (Senate Minority Leader Mitch McConnell expresses regret that the minority could not have obstructed more.)

In this time of extreme economic uncertainty, the three vacancies remaining on the seven-member Federal Reserve Board are prime evidence of the danger of the new appointment normal.

Constitutional Alternatives

It is notable that President Obama chose Constitution Day to announce his Elizabeth Warren selection. On the 223rd signing anniversary of the Constitution, timely Senate "advice and consent" of nominated principal officers is made impossible by obstruction.

In testament to the Framers' full wisdom, however, the 1787 document's Article II, Section 2, Clause 2 alternatively allows "the President alone" and the "heads of departments" to directly appoint "inferior officers."

Simply designate the excellent Prof. Warren as "inferior" and put her to work. Warren was actually given two jobs using both constitutional alternative authorities - Assistant to President Obama and Special Advisor to Treasury Secretary Geithner.

"Months and months and months" is the likely length of time it would take a traditionally appointed CFPB Director to start the job, according to Press Secretary Robert Gibbs. Referencing the Warren inferior appointment, Gibbs described how "Republicans in the Senate have virtually ground to a halt" traditional appointments; adding, "Nearly 200 nominations are pending. Nobody was going to be confirmed anytime soon."

The Administration understands the "new normal" of appointments. Is it perhaps again worth emphasizing that the Constitution's Article II, Section 2 provides an additional appointment alternative? Clause 3 allows for immediate appointment of principal officers during any Senate recess.

Recess Commissions - A New Normal Solution

In August, Obama made strategic use of his recess appointment authority for the third time. He filled three agency offices and one diplomatic post. On average, the government positions had been vacant 303 days. Perhaps Obama will come to fully embrace the recess commission alternative.

In announcing the four recess commissions from his Martha's Vineyard vacation location, Obama directly challenged the ongoing pattern of Senate obstruction: "At a time when our nation faces so many pressing challenges, I urge members of the Senate to stop playing politics with our highly qualified nominees, and fulfill their responsibilities of advice and consent. Until they do, I reserve the right to act within my authority to do what is best for the American people."

As obstruction will likely worsen after the mid-term election, Obama should prepare now to make increased use of the recess commission alternative.

The textual authority is unlimited: "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."

Appointments may be made during either an inter or intra session recess of no minimum length. A parallel, traditional appointment can proceed. Such recess commissioned officials have the full authority of a Senate-confirmed appointee.

The interim terms last until the end of the Senate next session. (If Obama were to recess commission Elizabeth Warren as CFPB Director in February 2011, she would have the job until late 2012.)

Accepting the new normal for federal appointments, President Obama should boldly use his recess commissioning authority, even while fighting daily for traditional Senate confirmations.

Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America School of Law.