Republicans shouldn’t settle for issuing outraged press releases the next time President Obama makes a recess appointment. Instead, they should use their constitutional powers to block him from taking such action in the first place.
In his first two years in office, Obama made 28 recess appointments, many of which were of highly controversial nominees who likely wouldn’t have been confirmed otherwise. Obama will keep making such appointments until House Republicans thwart him.
Remember that when Democrats took over Congress in 2007, Senate Majority Leader Harry Reid blocked President Bush from making recess appointments by holding pro forma Senate sessions every three days during congressional breaks. The sessions lasted mere seconds, with a clerk opening the chamber and a senator immediately gaveling it closed.
Last fall, Senate Minority Leader Mitch McConnell agreed with Reid to block recess appointments while senators were out campaigning, but for various reasons, this can’t be counted on to be repeated. As long as Democrats remain in control, there are limits to what Senate Republicans can do.
But House Republicans can use a tool provided by the Constitution in Article I, Section 5, which stipulates that, “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days. …”
Typically, the House and Senate pass what’s known as a concurrent resolution allowing them to adjourn, and its passage is a mere formality. But if the House GOP refused to agree to it, then the Senate could not recess for more than three days.
While the Constitution specifies no minimum number of days required for a recess appointment, a March 2010 Congressional Research Service report referenced a Clinton-era Justice Department brief suggesting it was more than three days.
The CRS report also noted that “(a)lthough President Theodore Roosevelt once made recess appointments during an intra-session recess of less than one day, the shortest recess during which appointments have been made over the past 20 years was 10 days.”
Conversations with Republican Hill staffers in both chambers suggest House GOPers aren’t considering this strategy because it would be viewed as an extreme step that would disrupt the sense of comity between the two chambers.
But extreme times call for such measures. Remember Dr. Donald Berwick, Obama’s pick to head the Centers for Medicare and Medicaid Services, who once professed his “love” for Britain’s socialized health care system?
And just in the last few weeks, the National Labor Relations Board’s unconfirmed acting general counsel Lafe Solomon has filed lawsuits against Boeing for building a nonunion factory in South Carolina that employs 1,000 people, and against the state of Arizona for passing a constitutional amendment protecting workers’ rights to a secret ballot in union elections. His position would be extended were Obama to recess-appoint him.
Obama recess-appointed Craig Becker to serve on the NLRB. Though he was a lawyer for the Service Employees International Union and AFL-CIO and other unions, now he’s charged with mediating disputes between unions and businesses.
While Becker’s term expires at the end of this year, the term of another NLRB member, chairwoman Wilma B. Liebman, expires in August. If Republicans don’t act, Obama could nominate Becker to fill her seat and recess-appoint him once again.
However, if the GOP were to block Obama from making recess appointments, the NLRB would be left with just two members by the end of the year – one Republican and one Democrat – which would likely prevent it from carrying out more of Obama’s radical union agenda.
Other potential Obama radical nominees could also be blocked from key positions throughout the federal government by putting a check on recess appointments.
Obama never hesitates to use all the tools available to him to push his agenda, and Republicans should follow his lead.
Philip Klein is senior editorial writer for The Examiner. He can be reached at [email protected].
