Recess Appointments
The White House announced on Saturday that the president will be making 15 recess appointments for various positions, mostly related to trade, labor, and finance. No judges (though NLRB commissioners perform an important adjudicative role), no Dawn Johnsen (would-be head of the DOJ Office of Legal Counsel), and, alas, no Fed governors. These 15 appointments represent just about 7% of the total number of nominees (217) pending before the Senate.
The recess appointments clause raises a few questions of constitutional semantics. The clause states: “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.” Art. II, § 2 (emphasis added). The questions are: (1) does ‘happen’ mean ‘occur’ or ‘exist’? In other words, does the vacancy have to arise while the Senate is in recess, or is it enough that the Senate is in recess and a vacancy exists? And (2) does the term ‘recess’ include relatively short intra-session adjournments in addition to the longer inter-session breaks?
The short and practical answers to those questions are (1) the President can fill any vacancy with a recess appointment, regardless of when the position became vacant; and (2) any adjournment over three days is probably long enough. The Eleventh Circuit Court of Appeals upheld Judge William Pryor’s 2004 recess appointment (to the Eleventh Circuit), made during a 10-day recess, the shortest on record for a judicial appointment. The current Senate recess will be 14 days. See this CRS Report (pdf) for the legal background.
Should Obama Make Recess Appointments to the Fed?
Brad DeLong thinks President Obama should fill the vacancies at the Federal Reserve by making recess appointments. Matt Yglesias is “not so sure about that”:
The Fed is one of the relatively few elements of the government that our national elite establishment takes seriously. When there was a need to reconfirm Ben Bernanke it got done, and quickly. I think that if Obama put some well-qualified names out there and made a point of emphasizing that he thinks quick action is needed, that he could get the job done.
I may be missing something here, but if the President thinks two new votes on the Fed Board might improve the odds that Fed policy would turn in a modestly more inflationary direction and help bring down unemployment, he should fill those seats as soon as his constitutional authority allows. I don’t really understand the argument against recess appointments here. He might ruffle some feathers. But so what? He could apologize and say it had to be done. The Senate is free to reject the appointees at the end of the session. And who really cares anyway?
The Fed chair is important and must be taken seriously in a way that the other seats on the board are not. (Chairs more important than seats. Hmmm….) The fact that multiple extended vacancies doesn’t make much difference in the functioning of the board—even if it makes a big difference in policy—seems to me evidence enough that nominations for these seats can be safely subjected to the usual treatment: maximal perversion of procedure for even the most minimal political gain.
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