So the New York Times is reporting that President Obama will recess appoint Dr. Donald M. Berwick to be administrator of the Centers for Medicare and Medicaid Services. The agency has been without a permanent administrator since October 2006. The Times reports:
The recess appointment was somewhat unusual because the Senate is in recess for less than two weeks and senators were still waiting for Dr. Berwick to submit responses to some of their requests for information. No confirmation hearing has been held or scheduled.
Looks to me like the Senate went out for an intrasession recess on July 1 and will reconvene on July 12. That’s 11 days under the counting method employed by the Justice Department. While it’s on the aggressive end because it’s relatively short, there certainly are a number of precedents for recess appointments during intrasession recesses of that duration–including, if memory serves, President George W. Bush’s recess appointment of Judge Pryor to the Eleventh Circuit. President Clinton made one recess appointment during a 10-day recess, one during an 11-day recess, and 16 appointments during a 12-day recess. I believe that President George H.W. Bush made one recess appointment during a 13-day recess (although the shortest one I can find at this late hour is 17 days). See the government’s brief in opposition in Miller v. United States (especially pp. 26-27 n.5) and its opp. in Franklin v. United States (pp. 29-30) for more.
It is certainly not without controversy, however; Attorney General Daugherty said in dicta in one opinion that an adjournment for “5 or even 10 days” would be too brief to constitute a recess for purposes of using the Recess Appointments Clause. But the Executive Branch (unsurprisingly) has been walking away from the Daugherty opinion pretty much ever since. And that is to say nothing about the considerable academic writing on the subject, much of which has been critical of intrasession recess appointments. See, e.g., Michael Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1487, 1562 (2005) (stating that “one-month recesses seem too short” but acknowledging that the “prevailing interpretation” of the Recess Appointments Clause “allows the President to make recess appointments . . . during intrasession recesses of ten days and perhaps of even shorter duration”).
See here for Jonathan Adler’s post on the President’s last round of recess appointments, back in March.
Cornellian says:
Soon we will see recess appointments made during Senate restroom breaks.
July 7, 2010, 12:59 amrpt says:
At least it wasn’t John (“blow up the UN”) Bolton.
July 7, 2010, 1:59 amMark N. says:
This is one of those oddities that somehow doesn’t bother me too much. The right answer is probably that, on the original understanding, recess appointments are now obsolete: their purpose was to fill positions during a time when the Senate was absent so unable to give advice & consent, in an era when convening the Senate involved quite a bit of travel and didn’t just take a few hours of plane flights. But these days it’s basically become a way for a President to appoint someone for a year or so without Senate confirmation, which doesn’t seem all that terrible, really.
July 7, 2010, 2:12 amPeter Gerdes says:
According to the senate faq Theodore Roosevelt once made a recess appointment during a one day recess but it was a intersession recess.
I think it’s important in situations like this to distinguish between the literal powers given by the constitution and the norms and traditions that have grown up to accompany their use. The intent of the framers is only relevant (except persuasively) to interpreting the extent of the former while the later is often obviously the result of more modern considerations.
Now it seems fairly black and white to me that a recess is a recess so the president has the literal constitutional power to make these recess appointments. I mean unless the framers couldn’t deal with basic logic the fact that they required congress to recess when not meeting for more than three days and gave the president the power to make recess appointments during any recess tells us everything we need to know about his literal constitutional power.
This doesn’t mean it’s not appropriate to critisize presidents for ‘abusing’ their constitutional powers. The constitution makes the president commander in chief so during a time of war he presumably has the literal constitutional power to order units containing the children of legislators voting against his agenda to the front lines but that would be a gross violation of all the norms we have about presidential behavior.
Indeed, this is the mistake many logic/mathy type people (speaking as a mathematician) make when considering the constitution. Godel was famously concerned over some kind of loophole/inconsistancy in the constitution (then again he was also paranoidly concerned about being poisoned). The literal requirements don’t actually stop unjust/tyrannical actions directly, instead they work to make such actions hugely significant and noticeable. For instance many scholars seem to think congress has the literal power to entirely strip the supreme court of jurisdiction in certain areas but this doesn’t render the protections of the other ammendments toothless. Even most people who oppose flagburning would be horrified to see congress simply strip the court’s jurisdiction to hear those cases.
On this count it is thus important to consider context. Had Obama appointed this official during a recess simply to perform an end run around a senate who was likely to deem them unqualified I would find it quit objectionable. However, when he uses his recess appointment power in a reasonable a proportionate response to the senate’s abuse of their literal power of advice and consent I think it’s totally reasonable.
For the record I think Bush’s use of the recess appointment as a response to senate fillibuster was totally reasonable as well. If you are going to play hardball with procedural tricks the other party can reasonably respond in kind. However, I’m less sure about the Bolton appointment since waiting on good faith demands by the senate for information about an appointees alleged past bad conduct is well within the standard norms for congressional behavior.
July 7, 2010, 4:27 ampublic_defender says:
This is the bottom line At least for non-judicial nominees, aggressive use of the recess appointment power seems like a logical response to aggressive use of the hold/filibuster power. On both sides, this is just checks and balances at work.
July 7, 2010, 5:41 amFloridan says:
There should be a requirement that the Senate hold an up or down confirmation vote within a reasonable period of time (say three months), otherwise the nominee becomes an automatic “recess” appointment.
July 7, 2010, 7:39 amPeteP says:
Just more politics at play. When GWB was in Office, the Dems were so ‘morally opposed’ to recess appointments, they went so far as to hold pro forma sessions every three days to strip the Presidency of this Constitutional power, because ‘ they thought it was fair to have confirmation hearings, and up-or-down votes on nominees’, right ?
Now, their situational morality shows it’s true color. Not only do they not hold pro-forma sessions, their leader uses the power and they say nothing. All of a sudden, they’re not concerned about ‘hearings’ and ‘up or down votes’.
Suprise, suprise.
July 7, 2010, 8:09 amArkady says:
Dude, head into the archives here and look up “Orin’s Law”.
July 7, 2010, 8:15 amruuffles says:
Maybe you should hold off on the faux outrage until Obama recess appoints Dawn Johnson (spot still vacant) or Goodwin Liu.
July 7, 2010, 8:42 amegd says:
I don’t get what’s the big deal. It’s a recess appointment with clear precedent, and shouldn’t raise any red flags, at least ethically (legally?). Politically, see PeteP’s point about hypocrisy from the Democrats.
Does it matter that GWB used recess appointments when the Senate was controlled by the opposite party? Either he was trying to appoint important and necessary officials and avoid prolonged political battles, or he was trying to sneak extremists into power without Senate oversight (depending on your political views).
However, what rationale does president Obama have to use recess appointments, especially since this position has been open since the Democrats had a “filibuster-proof majority”? I can’t imagine someone like this would raise a political red flag among any in the Democrat majority, so why use a recess appointment?
July 7, 2010, 9:12 amanomdebus says:
Another possibility to change behavior, in this case executive rather than legislative, would be to tie the length of the appointment with the length of the recess, for example a week for every day. If it is so critical to get someone in to a position during an 11 day recess, then it must be better to have them for two and a half months rather than nothing.
I also like Floridian’s suggestion as a way of keeping the legislative side honest. Though it is possible there are too many appointed positions to be able to handle them all in the given time frame, especially when you throw in a random distribution of lower judge seats. A potential downside to this is when both the executive and legislative are in agreement over a candidate that would not be able to get confirmed, the legislative could conveniently fail to make the deadline. Though, this may not be that different than the status quo.
July 7, 2010, 9:16 amMorning Bell: The Rationer-in-Chief | The Foundry: Conservative Policy News. says:
[...] that the White House chose to empower Dr. Berwick by recess appointment is particularly audacious. The recess appointment power was intended to be used for occasions when the Senate is out for moths …. The Senate is currently out of session for just 11 days. Worse, the Senate majority has never even [...]
July 7, 2010, 9:30 amSimon says:
When I looked at it earlier in the year, my conclusion on this issue was pretty close to Rappaport’s: a recess appointment is invalid unless the vacancy arose during the recess of the Senate. My understanding is that this is a long-time vacancy actually arose on 9/5/2006, a day on which the Senate was in session, precluding any recess appointment to the post.
Aside from the formal unconstitutionality of it, the appointment is troubling for what it reveals about this administration’s cast of mind. While the abuse of recess appointments would be troubling under any President (I objected to Bush’s use of it, too, FTR), it’s particularly so under a President who seems too willing to bypass the formal mechanics of government, placing large swaths of his administration under the de facto jurisdiction of unconfirmed “Czars.”
July 7, 2010, 9:54 amOrenWithAnE says:
It’s quite different. The Senate Majority Leader determines the agenda on the floor. Obama appoints Liu to the Supreme Court, Reid prevents it from coming to a vote, Liu gets on.
July 7, 2010, 10:05 amgracchus says:
A major limitation on abuse of the power is the fact that the appointment is for a limited time. Berwick will have to leave in January when the new congress comes in, as will Obama’s other recess appointees. As I understand it (I welcome correction) none of them can be re-appointed or serve further without Senate confirmation. As a rule, the recess appointment diminishes the chances that the appointee will receive Senate confirmation.
July 7, 2010, 10:06 amruuffles says:
According to the NYtimes, he’ll be there until late 2011
July 7, 2010, 10:22 amJoe says:
to appoint someone for a year or so without Senate confirmation, which doesn’t seem all that terrible, really.
My concern would be judicial appointments, which led to a lawsuit last time, though even there, it simply isn’t the end of the world. Recess appointments are an imperfect backdoor method of doing what should be done: put some time limit for holding up nominations, some cutoff point where a vote has to be taken. The time allowed here probably is too long, but the system is imperfect, clearly.
July 7, 2010, 10:23 amruuffles says:
1. Obama no longer has 60 votes.
July 7, 2010, 10:23 am2. Even assuming 60 votes to break a filibuster, this still results in debate eating up vast amounts of floor time.
anomdebus says:
OrenWithAnE ,
How is that substantially different from Obama simply waiting for a recess (such as apparently now) and recess appointing Liu? The outcome is the same, and the process does not necessarily have to differ either. Reid could just as easily do nothing as well as he could instruct the Judiciary committee members to do start the confirmation, but slowly or haltingly.
Btw, I think the Supreme Court isn’t a very good example as doesn’t seem to be the same sort of issues with the Senate’s responsiveness.
July 7, 2010, 10:34 amruuffles says:
That’s because justices make a point not to retire in a presidential election year. The last six vacancies arose after a presidential election but before the following midterm. Marshall and Powell retired following a midterm. One reason for the appt of Kennedy was that the delay from Bork and Ginsburg meant that the democratic-controlled senate was coming up on the 1988 election.
The only thing to cause more fireworks than a conservative retirement under Obama is if it happens immediately ahead of a presidential election (his or his successor). I believe the last time something like this occured was Warren and Fortas in 1968.
July 7, 2010, 10:48 amAngus says:
Your post was pretty good until you spouted this phony nonsense.
July 7, 2010, 10:58 amMorning Bell: The Rationer-in-Chief | Cycaster News says:
[...] that the White House chose to empower Dr. Berwick by recess appointment is particularly audacious. The recess appointment power was intended to be used for occasions when the Senate is out for moths …. The Senate is currently out of session for just 11 days. Worse, the Senate majority has never even [...]
July 7, 2010, 11:09 amPeteP says:
“… what rationale does president Obama have to use recess appointments, especially since this position has been open since the Democrats had a “filibuster-proof majority”?
“1. Obama no longer has 60 votes.
2. Even assuming 60 votes to break a filibuster, this still results in debate eating up vast amounts of floor time.”
Which of these abrogates Congress’s right and obligation to ‘Advise and Consent’ ?
July 7, 2010, 11:15 amMorning Bell: The Rationer-in-Chief « Thoughts Of A Conservative Christian says:
[...] that the White House chose to empower Dr. Berwick by recess appointment is particularly audacious. The recess appointment power was intended to be used for occasions when the Senate is out for moths … [10]. The Senate is currently out of session for just 11 days. Worse, the Senate majority has never [...]
July 7, 2010, 11:23 amanomdebus says:
ruuffles,
July 7, 2010, 11:28 amI meant as a comparison to most of the recent recess appointments where the vacancies have stood for years.
mantis says:
Which of these abrogates Congress’s right and obligation to ‘Advise and Consent’ ?
Are secret holds and filibustered confirmation votes the advise part, or the consent part?
July 7, 2010, 11:29 amJohn Ballard says:
Before getting all worked up over recess appointments it might be useful to check out the history of such “abuse of power.”
July 7, 2010, 11:53 amhttp://bit.ly/aC8HXI
This administration has plenty to be outraged about but appointing Dr. Berwick is not on the list. That’s especially true since the opposition openly argues repealing “Obamacare.” Anyone making CMS work better is anathema to that aim.
mls says:
I wonder what Marty Lederman, deputy at OLC, thinks about this. See, eg,his 11-21-07 post at Balkinization.
July 7, 2010, 12:21 pmPeteP says:
“Are secret holds and filibustered confirmation votes the advise part, or the consent part?”
Both. As part of the Rules of the Senate, Consitutionaly enacted by same, they are part of the ‘Advice and consent’ process.
Think of a ‘hold’ or an ‘objection’ ( to close further debate, for instance ) as saying ‘I advise us to not move to cloture on this issue’, and obviously ‘I do not consent to this appointment’, and ‘My advice is to stop it, as the rules allow’.
July 7, 2010, 1:11 pmSecond history says:
“Holds” and “blue slips” are not part of the Senate rules, they are part of Senate “tradition.” See CRS Reports 98-712 RL31948, p. 10, and RL34255.
July 7, 2010, 2:43 pmcolt says:
The democrats gained a 60 vote majority in 2008 not 2006 and held it for 1 year and used it once to bring a watered down health care bill to a vote. I’ve seen this lie trotted out there a few times so republicans can back up their claims.
July 7, 2010, 3:05 pmPeteP says:
““Holds” and “blue slips” are not part of the Senate rules, they are part of Senate “tradition.”
They are part of how the Senate decides it will operate. Your distinction is meaningless.
July 7, 2010, 3:16 pmAnother Originalism Problem : Lawyers, Guns & Money says:
[...] John Elwood, with respect to the trend toward more recess appointments by the president, and especially the recent intrasession appointment of Donald Berwick: It is certainly not without controversy, however; Attorney General Daugherty said in dicta in one opinion that an adjournment for “5 or even 10 days” would be too brief to constitute a recess for purposes of using the Recess Appointments Clause. But the Executive Branch (unsurprisingly) has been walking away from the Daugherty opinion pretty much ever since. And that is to say nothing about the considerable academic writing on the subject, much of which has been critical of intrasession recess appointments. See, e.g., Michael Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1487, 1562 (2005) (stating that “one-month recesses seem too short” but acknowledging that the “prevailing interpretation” of the Recess Appointments Clause “allows the President to make recess appointments . . . during intrasession recesses of ten days and perhaps of even shorter duration”). [...]
July 7, 2010, 3:17 pmcboldt says:
– As a rule, the recess appointment diminishes the chances that the appointee will receive Senate confirmation. –
July 7, 2010, 3:27 pmI think the reverse is true. Of course, the Senate decision will mostly depend on the appointee.
Wikipedia on rejected recess appointees – only discusses judges, but Truman, for example, recess appointed 38 judges, 3 of which were rejected. Taft has the worst rejection rate, losing 3 of 6.
CRS RS-21308 “Recess Appointments FAQ” doesn’t have statistics, but is a handy reference; e.g., the president can make successive recess appointments, but it (theoretically) puts pay at risk.
Brian G. says:
I recall the days when a recess appointment was a blatant abuse of power and in subversion of the Constitution, and was never done in the history of our country. Those days started on January 20, 2001, and ended on January 20, 2009. Now, a recess appointment is once again a well-accepted, normal power exercised by the President.
July 7, 2010, 3:28 pmcboldt says:
- -`I advise us to not move to cloture on this issue’, and obviously `I do not consent to this appointment’, and `My advice is to stop it, as the rules allow’. –
Cloture is supposed to serve a parliamentary function of conducting sufficient debate that the body reaches a reasoned decision, with all having a chance to persuade the others with debate. One can see this the cloture discussion in Roberts Rules of Order, for example.
July 7, 2010, 3:32 pmOnce a sufficient number of the body are ready to vote, the body should vote. It is dysfunction to use cloture as a substitute for rejection, as it gives the minority a veto power that it is not entitled to.
Agreed that the cloture rule enables a minority veto – I post just to say that cloture is meant to function as giving time for the entire body to become well informed, rather than as a tool to facilitate minority veto.
Spirited Reaction To Berwick Recess Appointment – Blog Watch says:
[...] that the White House chose to empower Dr. Berwick by recess appointment is particularly audacious. The recess appointment power was intended to be used for occasions when the Senate is out for months…. The Senate is currently out of session for just 11 days. Worse, the Senate majority has never even [...]
July 7, 2010, 3:40 pmPeteP says:
“Cloture is supposed to serve a parliamentary function of conducting sufficient debate that the body reaches a reasoned decision, with all having a chance to persuade the others with debate. One can see this the cloture discussion in Roberts Rules of Order, for example.”
True. And if my opinion as a Senator is that sufficient debate has not yet ocurred, then I raise objection. What meets that threshold of ‘sufficient’ is in the eyes of the Senator.
“Once a sufficient number of the body are ready to vote, the body should vote. It is dysfunction to use cloture as a substitute for rejection, as it gives the minority a veto power that it is not entitled to.
See above.
“Agreed that the cloture rule enables a minority veto — I post just to say that cloture is meant to function as giving time for the entire body to become well informed, rather than as a tool to facilitate minority veto.”
Perhaps it could be interpreted that way. Another way to interpret it, as currently used, is ‘I’m not going to agree that discussion has been sufficient on this until everyone agrees with me’.
This is commonly used not only by Senators, but by our beloved President, for example, when he says ( as he so often does ) ‘The time for debate is over, it’s time to move forward’, which to him means ‘It’s time for everyone to vote my way, and enact the bill I favor’.
July 7, 2010, 3:43 pmThe Rationer-in-Chief | Fix Health Care Policy says:
[...] that the White House chose to empower Dr. Berwick by recess appointment is particularly audacious. The recess appointment power was intended to be used for occasions when the Senate is out for months…. The Senate is currently out of session for just 11 days. Worse, the Senate majority has never even [...]
July 7, 2010, 3:45 pmcboldt says:
– Another way to interpret it, as currently used, is `I’m not going to agree that discussion has been sufficient on this until everyone agrees with me’. –
Yeah, but that’s just another way of stating a minority veto. Often, in cloture votes, the voter has made up their mind on the underlying issue. In fact, ALL of the members of the body know how they will/would vote on the underlying issue. My point is that when the body is ready to vote (on the underlying issue), if it wasn’t dysfunctional, it would vote. Cloture enables a minority to avoid the body’s rendering a decision, when the body is otherwise ready and able to.
– What meets that threshold of `sufficient’ is in the eyes of the Senator. –
July 7, 2010, 4:45 pmThe way cloture is supposed to work is that when a person has heard enough to have obtained a conviction as to how his vote will be cast, then that person should say “I have had and heard enough debate. I am ready to vote.”
Cloture is potentially a fine tool. But give any tool to Congress, and they’ll screw it up.
PeteP says:
“Cloture enables a minority to avoid the body’s rendering a decision, when the body is otherwise ready and able to”
Thus avoiding the ‘Tyranny of the majority’, as the Founding Fathers intended.
“The way cloture is supposed to work is that when a person has heard enough to have obtained a conviction as to how his vote will be cast, then that person should say “I have had and heard enough debate. I am ready to vote.”
By that standard, there would be NOTHING the majority couldn’t pass ( this year the Dems, a few years down the road the Repub’s ).
The Dems demonstrated this clearly when they had 60 votes pre-Brown – all bills were written by Dems, rammed through committee by Dems, for Dems, and approved or re-written in secret by Head Dem Reid, and then voted on by Dems.
By your concept, there would be no need for any party in the minority to ever show up, as long as the majority could whip their members into closing ranks and voting the party line, as they do.
July 7, 2010, 4:59 pmmantis says:
Yet recess appointments, which are provided by Article 2, Section 2 of the Constitution, somehow “abrogate Congress’s right and obligation to ‘Advise and Consent’,” according to you.
You don’t get to have it both ways.
July 7, 2010, 5:20 pmdude says:
I don’t have much of a problem with recess appointments when the other side won’t bring a guy in for an up or down vote.
But dang…to recess appoint someone whom your own party won’t bring up for a vote? Pretty typical politics by the chicago gang.
And pretty typical crickets from the leftosphere.
July 7, 2010, 5:40 pmFury says:
Agreed. From the New York Times article:
“No confirmation hearing has been held or scheduled.”
When a recess appointment is made and members of your own party have not scheduled confirmation hearings for the nominee, that’s probably not a good sign.
July 7, 2010, 6:02 pmcboldt says:
– Thus avoiding the `Tyranny of the majority’, as the Founding Fathers intended. –
July 7, 2010, 6:56 pmThey could have provided “60 votes (or some other supermajority) to pass legislation,” but they didn’t.
– By that standard, there would be NOTHING the majority couldn’t pass –
That’s correct. That’s how a properly functioning deliberative body works. It deliberates, then it votes. To deliberate then “not vote” is contrary to parliamentary procedure. The function of cloture is to protect the deliberation, not to prevent the vote altogether.
Now, I’m not saying that the Senate can’t do what it’s doing (except I think it is unconstitutional, but there is no remedy, when it considers executive nominations), and I’m not saying that it is “against the rules.” What I’m saying is that it represents a dysfunction, compared with the general design of the deliberative body.
PeteP says:
“That’s correct. That’s how a properly functioning deliberative body works. It deliberates, then it votes.”
The Senate DOES vote – and their rules say it takes 60 votes to cut off debate, IOW it takes 60 votes to pass a change to the law, IOW the majority party does not have free reign to do whatever the H they please.
If you support the idea that ’50 % + 1 gets you anything and everything you want’, then I suppose you’d like it some other way.
Given that, for practical purposes ( with rare exceptions ) one party or the other will ALWAYS have a majority of at least one, I sure don’t want to see EITHER of them just being able to run amock ( more than they both do already ) with even LESS restraint on their foolishness than there is now.
Do you object to it taking 67 votes to approve a treaty, too ?
July 7, 2010, 8:24 pmcboldt says:
– The Senate DOES vote — and their rules say it takes 60 votes to cut off debate, IOW it takes 60 votes to pass a change to the law, IOW the majority party does not have free reign to do whatever the H they please. –
July 7, 2010, 9:47 pmThe function of cloture, in proper parliamentary practice, is not to provide a minority veto.
From founding to 1800 or so, a simple majority could “call the question” and immediately cut off debate. This process was removed, because the group always allowed its members enough time to debate, then they voted. After some senators abused the right to object to taking the vote, the Senate instituted a cloture process in 1916 or so, IIRC. The hurdle for passage of cloture has varied since then.
Even with cloture, it does NOT take 60 votes to pass a measure – a simple majority is sufficient to pass. There are numerous instances of passage with 51-59 AYE votes.
I have no quarrel with the practical fact that the Senate abuses the cloture rule. I was simply providing what I think is interesting education relating to the nominal or intended function of cloture in a normally functioning deliberative body.
– If you support the idea that ’50 % + 1 gets you anything and everything you want’, then I suppose you’d like it some other way. –
I don’t understand this comment.
– Do you object to it taking 67 votes to approve a treaty, too ? –
It depends. If 100 Senators vote, yes. Otherwise, no. A 2/3rds hurdle is specified in the constitution.
Senate Rule XXX – Executive Session Proceedings on Treaties, interestingly, provide a simple majority passage on a cloture motion, should a cloture motion be filed.
Sarcastro says:
Saying debate won’t end till you agree with me? Well, I suppose bad faith is a kind of faith.
And the Founders hated tyranny of the majority, which is why they, in their infinite wisdom, totally put filibusters in the Constitution! Or would have, cause they loved them the minority rights. Really, if anything protects the minority rights it’s good!
Jeep on keeping on, geokstr!
July 8, 2010, 1:05 amThe Rationer-in-Chief | Bud Hunt Site says:
[...] particularly audacious. The recess appointment power was intended to be used for occasions when the Senate is out for months at a time. The Senate is currently out of session for just 11 days. Worse, the Senate majority has never even [...]
July 8, 2010, 12:01 pmfwb says:
Freakin’ Duh!
The clause states the president has the power to “fill up all Vacancies that may happen during the recess”.
This vacancy DID NOT HAPPEN DURING RECESS, meaning someone was in the position and left during a recess of Congress NOT that a position was open and an appointee was being reviewed by the Senate.
Option is not constitutionally available.
July 8, 2010, 6:27 pmfwb says:
AND if the current break is a “recess” AND the vacancy is asserted to have happened during the recess then the next session begins when Congress returns so the appointment must end whenever the next break/recess occurs as per Article II, Section 2, Paragraph 3.
July 8, 2010, 6:33 pmArthur Kirkland says:
I dislike the apparent ‘appointment without a logjam,’ but a fever over this appointment seems unreasonable because (1) this does not appear to be an especially important position, (2) I haven’t seen evidence that the current president has used the method to abnormal degree, (3) the first time I paid any attention to recess appointments was during the Reagan administration, which seemed to use it regularly, and (4) in a more current context, this appointment is less aggressive, from a perspective of the policy or temperment of the appointee, than the John Bolton appointment.
Still, acting before the gears jam seems unseemly.
July 8, 2010, 9:06 pmRationer-in-Chief « Try 2 Focus says:
[...] that the White House chose to empower Dr. Berwick by recess appointment is particularly audacious. The recess appointment power was intended to be used for occasions when the Senate is out for moths …. The Senate is currently out of session for just 11 days. Worse, the Senate majority has never even [...]
July 8, 2010, 10:43 pmAnd Donald Berwick Goes Down The Slides « Around The Sphere says:
[...] John Elwood: Looks to me like the Senate went out for an intrasession recess on July 1 and will reconvene on July 12. That’s 11 days under the counting method employed by the Justice Department. While it’s on the aggressive end because it’s relatively short, there certainly are a number of precedents for recess appointments during intrasession recesses of that duration–including, if memory serves, President George W. Bush’s recess appointment of Judge Pryor to the Eleventh Circuit. President Clinton made one recess appointment during a 10-day recess, one during an 11-day recess, and 16 appointments during a 12-day recess. I believe that President George H.W. Bush made one recess appointment during a 13-day recess (although the shortest one I can find at this late hour is 17 days). See the government’s brief in opposition in Miller v. United States (especially pp. 26–27 n.5) and its opp. in Franklin v. United States (pp. 29–30) for more. [...]
July 17, 2010, 7:10 pmSpirited Reaction To Berwick Recess Appointment | Kaiser Permanente Health Insurance Help says:
[...] that the White House chose to empower Dr. Berwick by recess appointment is particularly audacious. The recess appointment power was intended to be used for occasions when the Senate is out for months…. The Senate is currently out of session for just 11 days. Worse, the Senate majority has never even [...]
August 12, 2010, 5:10 pmSpirited Reaction To Berwick Recess Appointment | Go HealthReform says:
[...] that the White House chose to empower Dr. Berwick by recess appointment is particularly audacious. The recess appointment power was intended to be used for occasions when the Senate is out for months…. The Senate is currently out of session for just 11 days. Worse, the Senate majority has never even [...]
August 27, 2010, 1:04 am