Legal Commentary

President to Recess Appoint Donald Berwick

By John Elwood

So the New York Times is reporting that President Obama will recess appoint Dr. Donald M. Berwick to be administrator of the Centers for Medicare and Medicaid Services. The agency has been without a permanent administrator since October 2006. The Times reports:

The recess appointment was somewhat unusual because the Senate is in recess for less than two weeks and senators were still waiting for Dr. Berwick to submit responses to some of their requests for information. No confirmation hearing has been held or scheduled.

Looks to me like the Senate went out for an intrasession recess on July 1 and will reconvene on July 12. That?s 11 days under the counting method employed by the Justice Department. While it?s on the aggressive end because it?s relatively short, there certainly are a number of precedents for recess appointments during intrasession recesses of that duration?including, if memory serves, President George W. Bush?s recess appointment of Judge Pryor to the Eleventh Circuit. President Clinton made one recess appointment during a 10-day recess, one during an 11-day recess, and 16 appointments during a 12-day recess. I believe that President George H.W. Bush made one recess appointment during a 13-day recess (although the shortest one I can find at this late hour is 17 days). See the government?s brief in opposition in Miller v. United States (especially pp. 26?27 n.5) and its opp. in Franklin v. United States (pp. 29?30) for more.

It is certainly not without controversy, however; Attorney General Daugherty said in dicta in one opinion that an adjournment for ?5 or even 10 days? would be too brief to constitute a recess for purposes of using the Recess Appointments Clause.  But the Executive Branch (unsurprisingly) has been walking away from the Daugherty opinion  pretty much ever since.  And that is to say nothing about the considerable academic writing on the subject, much of which has been critical of intrasession recess appointments.  See, e.g., Michael Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1487, 1562 (2005) (stating that ?one-month recesses seem too short? but acknowledging that the ?prevailing interpretation? of the Recess Appointments Clause ?allows the President to make recess appointments . . . during intrasession recesses of ten days and perhaps of even shorter duration?).

See here for Jonathan Adler?s post on the President?s last round of recess appointments, back in March.

Full post as published by The Volokh Conspiracy on July 07, 2010 (boomark / email).