Legal Commentary

Reid?s Reversal on Recess Appointments

By Jonathan H. Adler

The Politico reports:

Senate Majority Leader Harry Reid used to consider recess appointments ?an end run around the Senate and the Constitution? ? so much so that he kept the chamber open during breaks to prevent President George W. Bush from making any more of them.

But with a Democrat in the White House, and Republicans blocking executive branch nominees, Reid and his allies are starting to sing a different tune.

Reid said last week that he?s ?tried hard? to avoid the need for President Barack Obama to make recess appointments, but he added: ?What alternative do we have? . . .

While Obama has so far shied away from using recess appointments, the Constitution gives presidents the power to install appointees to vacant positions when the Senate is on a recess.

Such appointments last only until the beginning of a new session of the Senate, meaning any Obama recess appointment would hold their posts until next year ? when Republicans are likely to have more seats in the chamber.

Bush made 179 recess appointments, and President Bill Clinton made 139, according to the nonpartisan Congressional Research ServiceSen.

Reid?s change of heart appears motivated, in part, by Senator Richard Shelby?s blanket hold on some 70 pending nominees.  Yet as Politico also reports, Sen. Reid imposed a blanket hold of his own in 2004 to get a federal appointment one of his advisors.

The Constitution authorizes recess appointments, even if modern use of the power is more expansive than the Constitution may have contemplated.  As I see it, recess appointments are an appropriate response to the Senate?s persistent refusal to confirm nominees with strong majority support, particularly if that support is bipartisan.  As a practical matter, recess appointments risk political backlash, particularly if they are overused.  In this regard it is notable that President Bush made only four recess appointments after Democrats retook the Senate in 2006, after having made 175 during his first six years.

UPDATE: The NYT reports Senator Shelby has lifted his holds on all but three nominees whose positions are related to the Defense projects he?s seeking to advance.

Full post as published by The Volokh Conspiracy on February 09, 2010 (boomark / email).