Asymmetrical Information - Megan McArdle

01.25.13

DC Appellate Court Rules Obama's Recess Appointment Unconstitutional

The last year of labor and consumer financial regulation suddenly in limbo

About a year ago, President Obama used recess appointments to fill vacancies on the National Labor Relations Board, and to appoint Richard Cordray as head of the Consumer Financial Protection Bureau.  Republicans squawked because the Senate was not technically in recess.  During the Bush administration, Democrats started keeping the Senate in "pro forma" session so that the president could not end-run the Advise and Consent process with a recess appointment.  They'd gavel in for a few moments once every couple of days, and then gavel out again.  Republicans followed suit, and Obama, fed up with the inability to appoint people to key boards, simply declared that they were effectively in recess because they wren't doing anything.  

Today a DC appellate judge ruled that the president couldn't do this.  It is a sweeping ruling, one which promises to effectively end the practice of using recess appointments to get controversial nominees past the Senate.  

As a constitutional matter, this strikes me as correct; as the opinion notes, if the president can simply decide for himself when the Senate is in session, then the confirmation requirement is meaningless.  Moreover, the recess appointment was designed for an era when recesses were months long, and it could take weeks to assemble the legislature in an emergency.  It was necessary that the president have the power to, say, appoint a secretary of war if the previous one died while the Senate was in recess.  But that need no longer exists.  

As a political matter, I'm not unhappy to see a court step in to stop the escalating tit-for-tat that has been happening in Washington over the last few decades.  At each juncture, both sides can legitimately point to some outraged committed by the other guys.   Someone has to stop the madness.  

That said, let me state the obvious: the president should be able to appoint people to fill offices.  The confirmation process has become ludicrously bogged down, and if unilaterally declaring his own recess was not right, neither is it right to hold the nomination process hostage.  I'm not a fan of Obama's NLRB, but he is the duly elected president of the United States, and there's no justification for refusing to let him fill the seats.  

To some extent, the threat of further escalation has acted as a check on further escalation.  Republicans should not use this as an excuse to escalate further, now that the main threat of retaliation has been removed.  If for no other reason than that you might give moderate Democrats cause to rethink filibuster reform.

In the meantime, this has some sweeping implications.  A great deal of the work that the CFPB has done over the last year now stands called into question.  It's not clear what will ultimately happen--there's a circuit split between DC and the 11th circuit, which means that this is probably headed to the Supreme Court.  But until it's resolved, the CFPB, and the NLRB, will be largely running in place.  And if the Supreme Court agrees with the DC circuit, most of what they've done over the last year may ultimately be undone.