Recess appointments with the boot on the other foot

On the pretext of a need to get around the Shelby problem, Democrats are considering resorting to recess appointments. When President Bush used some recess appointments in 2006, liberal blogs weren't happy—Daily Kos, for instance, opined: "King George has dissolved Congress. Who needs the pesky Senate for 'advice and consent' when a recess appointment will work just as well?"—and in 2007, the Senate used pro forma sessions to avoid affording Bush the opportunity. Now the question's political valence has reversed, and the same Democratic leader who successfully tried to avoid Bush recess appointments is happily chirping away about recess appointments by President Obama.

Back when Alberto Gonzales resigned from the Attorney General's billet, I suggested that a swift recess appointment was the best route forward. (This was error, as we shall see.) Disagreeing, Pat wrote:

A recess appointment might be nice, but it's really the coward's way out... and not particularly in keeping with our constitutional traditions. Constitutional, yes, but not really in accordance with the traditions of these institutions of government. There would be a political cost to a recess appointment, as well, if the Dems aren't shown to be stonewalling first.

In the mine run of cases, that's all true. The difference between then and now in terms of political cost, however, is that Shelby's move—already reprehensible at the level of principle—has the practical effect of supplying the President with the cover of high-profile stonewalling that can be attributed to "the opposition" rather than one avaricious Senator. The fact that Shelby has dropped his blanket hold will not diminish this point in the slightest if the idea gets traction. Remember: Shelby is pretext not reason.

Still, while I'm somewhat more sympathetic to recess appointments than Pat, I continue to maintain that ex visceribus verborum, the President's power "to fill up all vacancies that may happen during the recess of the Senate," Art. II § 2 (emphasis added), does not extend to filling up all vacancies that exist during the recess of the Senate. See Michael Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005). Although the second circuit reached a contrary decision in United States v. Allocco, 305 F.2d 704 (1962), nothing persuasive was offered in support of its surprising conclusion. Notwithstanding the contrary practice of recent years, then, a President may not validly grant a commission (thus, presumably, a commission so granted and all acts done under its authority are ultra vires) when the vacancy predates the recess, and there is even some (albeit thinner) reason to believe that not all recesses count. (We might also wonder: does the power to give such a commission expire with Congress' return, or does the clause authorize a temporary commission for a vacancy that arose during a previous recess?)

Accordingly, my suggestion of a recess appointment to replace Gonzales was presumably mistaken, since Congress was in session on the effective date of Gonzales' resignation. (It could be said in my defense that his resignation was submitted during a recess, but that would require a persuasive argument that a vacancy arises when the letter announcing it takes place not when the office actually becomes vacant, a tough row to hoe.) As relevant today, I would counsel against a recess appointment for Craig Becker—the President's nominee for NLRB, and apparently the unspoken locus of this dispute—unless the the vacancy "happen[ed]"—which is not the same as "happened to exist"—during a previous recess of the Senate.

Post facto:
The limits of the recess appointment power (4/26/2010)
In re Cole (12/31/2010)