A recess appointment, where a president puts someone into a government post while Congress is on a break, is not the best way to fill top-level vacancies. It bypasses the Senate's role in determining a nominee's fitness for office, and it reduces the checks and balances that hold the reins on presidential power. But a federal appellate court has made a serious legal error by invalidating most of the president's recess appointment power. If the ruling stands, it will add to the political dysfunction and gridlock that besets Washington by giving a minority of senators the power to shut down the work of federal agencies.
The White House says it will appeal the ruling by the U.S. Court of Appeals for the District of Columbia that deemed President Barack Obama did not have the executive authority to name three officials to the National Labor Relations Board. The court was wearing blinders when it determined that the Senate was technically in session when the appointments were made. Republicans in Congress used a maneuver where a near-empty congressional chamber is gaveled to order every few days for the sole purpose of thwarting recess appointments.
While both political parties have used sham sessions to block presidential appointments, the Senate's partisan rancor has meant this president has had a particularly difficult time obtaining up or down votes on his nominees, leaving perennial vacancies for key posts. In this case, the president used his recess appointment to give the labor board enough members for a quorum so it could operate, something Senate Republicans had been blocking because of their ideological opposition to its work. Obama acted reasonably considering the obstruction he faced.
But the federal appeals court went even further in limiting the president's power, saying the president can only make recess appointments during breaks between the formal sessions of Congress — which generally occur once a year if at all. Two of the three judges indicated that only recess appointments made if the vacancy occurs during that same recess are constitutional.
Under these rules 652 appointments made by presidents since Ronald Reagan would have been blocked, according to the Congressional Research Service.
By being hypertechnical, the court defied the very spirit of the recess appointment. The Justice Department makes a valid case that during a "pro forma" session, no nominations can be taken up and the Senate is not prepared to carry out its "advice and consent" role.
If the ruling stands, the NLRB will be moribund and an estimated 300 rulings could be challenged as null and void. The work of the Consumer Financial Protection Bureau also would be vulnerable. Obama used a recess appointment for its director, Richard Cordray, because Senate Republicans were refusing to confirm a director. Obama has already renominated Cordray and two members of the labor board, but there's no indication Republicans will act on them.
The president deserves an up or down vote on his nominees. But if the Senate is to be controlled by tactics that allow a minority to disable government agencies that have been established by law, recess appointments must remain available.