President Obama's unilateral decision to challenge the Senate over recess appointments will lead to an all-too-familiar melodrama: White House lawyers and their Senate antagonists will trade legal mumbo jumbo while an alienated public looks on with disgust at yet another example of Washington malfunction.
The public is right on this one.
During the first 150 years of the republic, Congress generally met for a few months a year, leading to an obvious problem: what to do when a vacancy occurred during the off-months? Sensibly enough, the Constitution gave the president the power to fill open positions during the recess; after all, he was the only guy in town. It also allowed these interim appointees to keep their positions until the end of the next Senate session, by which time they would either gain confirmation as permanent officials or lose their jobs.
But once the Senate became a full-time institution in the 20th century, the role of recess appointments became a weapon in the ongoing struggle for power between Congress and the president. It was now possible for the Senate to pretend that it never closed for business, and to deny that the president ever had authority to make provisional appointments.
Sen. Harry Reid (D-Nev.) made the final leap into this convenient legal fiction in 2007. President George W. Bush had named highly ideological candidates to recess appointments, and once the Democrats swept back into power, Majority Leader Reid moved to block any effort to ignore the new senatorial majority. Henceforth the Senate would hold regular pro forma sessions even when members left town for a summer break or the Christmas holidays. Reid's "sessions" would last only a minute or two, but they permitted the Democrats to deny that Bush had the authority to make recess appointments.
The gambit worked — Bush made 171 recess appointments during his first six years in office, but he made none once Reid's initiative went into effect.
Bush's acquiescence was particularly remarkable because it seriously weakened the presidency. His recent predecessors had regularly used the threat of recess appointments as a bargaining weapon against intransigent senators who manipulated the filibuster rules to block executive branch nominations. Despite this presidential threat, senatorial obstruction had significantly impaired governmental functioning. Since Ronald Reagan's presidency, administrations have had to contend with an average 25% vacancy rate in executive branch jobs. Reid's procedure threatened to increase senatorial veto power, creating a real crisis of government for Obama and all future presidents.
In the present standoff, for example, Senate Republicans have not only filibustered Democratic efforts to push for a final vote on Obama's nomination of Richard Cordray as director of the new Consumer Financial Protection Bureau; 45 of them have said they would reject all other nominees for that position until the president agreed to fundamental changes in the Dodd-Frank law that organized the new bureau. If Obama can't respond to this Republican blockade with a recess appointment, he has no way to fulfill his constitutional responsibility to "take care that the laws be faithfully executed."
Nevertheless, Reid didn't rethink his pro forma fiction once Bush left the White House. Instead, he allowed Minority Leader Mitch McConnell (R-Ky.) to con him into continuing the practice, transforming a temporary expedient into a potentially permanent roadblock. The fact remains, however, that the Senate's new procedures have no relation to reality. Though it may "meet" for a minute every three days, it explicitly has declared that no serious business will go on until Jan. 23. So if the Constitution is based on realities, not fictions, Obama should be in a strong position to challenge the Senate's claim to an absolute veto on all recess appointments.
But he has chosen the worst possible way to launch his attack. Normally, presidents rely on the Justice Department to present their case on matters of high constitutional importance. But Obama has refused to take this course, probably because traditionalists in the department refused to endorse his collision course with the Senate. Instead, he used his White House counsel, Kathryn Ruemmler, to serve as his legal mouthpiece.
This is the same tactic Obama used a few months ago when he cut Congress out of his decision to bomb Libya despite the contrary provisions of the War Powers Act. Like the present case, the Justice Department refused to endorse his unilateral action, and Obama responded by using his White House counsel as a rubber stamp for his end-run around Congress.
This time, Obama has a much better legal argument. But if he wins his battle, he will create yet another precedent authorizing the imperial presidency to use White House counsel as a legal battering ram. At the same time, there will be a heavy price to pay if he is forced to retreat before a powerful senatorial counterattack. Should the Senate succeed in the defense of its legal fiction, it would weaken effective government for a long time to come.
So choose your poison. The short-term hope is that Obama can persuade Reid to come to his senses and lead the Senate to a statesmanlike retreat that doesn't impose long-term damage on the system of checks and balances. Despite the prevailing partisanship, a sensible solution may not be impossible. After all, it is the Senate's Democrats, not its Republicans, who hold the key to compromise.
Bruce Ackerman is a professor of law and political science at Yale and the author of "The Decline and Fall of the American Republic."