Legal Commentary

President to Recess Appoint James Cole as Deputy AG

By John Elwood

The President today announced that he would recess appoint James M. Cole as Deputy Attorney General.  His nomination has been pending since May?reportedly the longest delay in confirming a DAG nominee in 30 years, but in the context of nominations in the last decade or so (some of which have dragged on for years), an all-too-typical delay.  A synopsis of the controversy over the Cole nomination here. The President also recess appointed ambassadors to Azerbaijan, the Czech Republic, Turkey, and Syria (the last was controversial because some complained it was rewarding Syria?s bad behavior by sending an ambassador; there has been no ambassador to Syria since 2005).  My favorite of the current crop is the recess appointment of William Boarman to be Public Printer of the United States, mainly because you?d think you could get a printer confirmed without a kerfuffle, but no. Get the skinny here.  Eventually the national security implications of not having a confirmed Public Printer are grave enough that it forces the President?s hand.  The appointments will last until the end of the next session of Congress. 

The Senate rose sine die on December 22, so these are intersession recess appointments. Whether they are intersession or intrasession appointments doesn?t make a material difference here, because the Senate is out for two weeks until January 5, an amount of time that traditionally has been considered (by the Executive Branch, at least) sufficient even to make intrasession recess appointments. The main significance of the inter/intra distinction is that once the Senate rises sine die there?s no question that the Senate is in recess and so everyone isn?t focused on whether the duration of Congress?s adjournment is sufficient that it is a ?recess? for purposes of the Recess Appointments Clause. That and the fact that when Congress has gone home for good there is no real mechanism for conducting ?pro forma sessions,? which are thought by some to prevent the President from making recess appointments.  My and Steve Bradbury?s contrary view on pro forma sessions here.

Other VC coverage of President Obama?s recess appointments here and here.

Full post as published by The Volokh Conspiracy on December 30, 2010 (boomark / email).