Friday, January 6, 2012
Gridlock, Recess Appointments, and the Separation of Powers
As the elected head of the executive branch, the President has a right to place individuals in position to operate executive branch agencies under his direction so he can fulfil his duty to "take Care that the Laws be faithfully executed."
The Senate has the power to advise and consent to these nominees, but in recent decades has so abused this power that something had to be done to restore the proper constitutional balance. The confirmation process is no longer about reviewing individual competence of appointees, but is now used by individual Senators and the Senate minority as a whole to leverage Executive branch actions that they are unable to achieve through normal legislative action. Nominations are routinely blocked for virtually any reason at all -- to impact budget allocations, to protest executive actions, to gain service for constituents, to pressure the appointment of other individuals, to gain reversal of a board decision -- the list is endless. Giving Senators some ability to influence Executive action is certainly a by product of the advise and consent power. But the wholesale obstruction of Executive Branch functions and holding hundreds of nominations hostage to a never ending rolling list of demands distorts the constitional balance the Framers intended.
Presidents have responded to this abuse by using their recess appointment power to rescue appointees languishing at the Senate desk. But now the Senate (in this case, at the demand of the minority threatening to filibuster the adjournment resolution) has responded in turn to prevent technical recesses from occuring via the farce of pro forma sessions every three days when no business is done and all but one Senator have no intention to return to Washington to attend. We could obsess over the constituional law question of whether a sham session counts as a recess (and at least Professor Tribe believes it is not), but that is putting process way before substance.
The key point is that the system is broken and something had to be done to fix it. Obama's action yesterday - and his apparent willingness to use this process in the future - may restore some semblance of balance that has been harming the proper functioning of the government for far too long.