Preemptive Recess Appointments

One justification for President Obama’s decision to make several recess appointments this week is that the appointments were necessary to prevent partisan obstruction from disabling federal agencies from performing their duties.  In the case of Richard Cordray, it was clear that Senate Republicans would block his appointment as head of the Consumer Financial Protection Board (CFPB) due to their opposition to how the Board is structured.  A recess appointment was the only way to put Cordray (or anyone else) in place to run the Board.

In the case of the National Relations Board, the President was concerned that the Board would lack a quorum.  As the Supreme Court confirmed in New Process Steel v. NLRB, there must be three NLRB members for the Board to have a quorum, and there were only two Board members remaining after Craig Becker’s recess appointment expired on January 3.  Yet if the NLRB was to lack a quorum it would not have been because Senate Republicans blocked the President’s most recent nominees.

Two of those given recess appointments — Sharon Block and Richard Griffin — were only nominated to the NLRB on December 15, just before the Senate went into its “pro forma” session during which no business was to be conducted. Yet even had the Senate been conducting business over the holidays, neither Block nor Griffin could have been confirmed.  As the Heritage blog reports, the Senate’s Health, Education, and Labor Committee had yet to receive the relevant paperwork and background materials on these two nominees — materials that are typically required, in addition to a background check, for Senate consideration.  (The third nominee to receive a recess appointment to the NLRB was Republican Terry Flynn who had been nominated last January.)

It is certainly possible — perhaps even likely — that Senate Republicans would have opposed confirmation of Block or Griffin, but we’ll never know.  The two were given recess appointments before they could be considered, let alone opposed.  In this regard, the Griffin and Block appointments were something of a preemptive strike.