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Debate Over Appointees Hinges On One Word: Recess

President Obama took a controversial step this week in making appointments to the Consumer Financial Protection Bureau and National Labor Relations Board during what the White House considered a congressional recess, bypassing any objections from lawmakers.

Late Friday, Republicans in both the House and Senate sent letters to the White House asking why Obama had ignored 90 years of legal precedent. And prominent conservatives — including a former attorney general under President Reagan — floated the idea that GOP senators could filibuster all of Obama's other nominees or hold up "must pass" legislation.

But White House officials say it's the GOP that's ignoring history.

There are a lot of appointees who have been languishing. These were, you know, folks who were necessary in order to make the agencies be able to function.

The debate over the appointments comes down to the meaning of a single word: recess.

White House Counsel Kathy Ruemmler tells NPR the president and his lawyers are merely adopting a common-sense approach.

"Our view is that a pro forma session at which the Senate by its own definition is not conducting any business and is unavailable to provide advice and consent on the president's nominees is for all practical and functional purposes in recess," she says.

Ruemmler says a holiday session in which a lone senator appears in the otherwise empty chamber to bang the gavel and take off is just a gimmick — a gimmick that robs the president of his power to keep the government running.

"The way that the Constitution should be interpreted is not through a formalistic or artificial construction but rather a practical, common-sense approach," she says.

Ruemmler says Obama has used his constitutional authority sparingly and with great care, choosing to move ahead only after Republicans said they refused to move on nominees at the consumer protection bureau, which was barred from taking certain actions without a leader, and the NLRB, which had no quorum with which to operate.

"There are a lot of appointees who have been languishing," she says. "These were, you know, folks who were necessary in order to make the agencies be able to function."

Conservatives like Todd Gaziano, who directs the Center for Legal and Judicial Studies at the Heritage Foundation, flatly reject those arguments

"The president's defense really has no legal credibility," Gaziano says. "There have been over 90 years of interpretation in which both branches of government have agreed that [a break of ] at least nine or 10 days [with no Senate business conducted] is necessary, with the Senate generally taking the view that something even longer is required."

Gaziano adds that if the White House is talking about the way the world actually works, it should consider the history of the recess appointment power.

"The original purpose of the recess appointment power functionally was to allow the president to make appointments when the Senate took weeks to contact in the old days," he says. That's not the case anymore with email and airplanes.

The U.S. Chamber of Commerce has signaled it might sue after Richard Cordray's consumer protection bureau moves ahead with new regulations on business.

Harvard Law professor Lawrence Tribe says he thinks there will certainly be a wave of litigation. But Tribe says he believes Obama, his former student, acted well within his power to keep the administration moving during an extended break in Congress.

"I think he certainly anticipated legal actions and is on very solid ground," Tribe says. "I mean, 12 presidents have made 285 appointments of this kind during a session since 1867."

Ultimately, Tribe says, there's not much law on the issue, so the courts will need to develop "criteria for what counts as a real recess, which this I think clearly was, and what is simply a weekend break or a routine break that has nothing to do with frustrating the operations of the executive branch."

It's an issue that Tribe says could make its way up to the Supreme Court.

Meanwhile, after calls from lawyers and lawmakers on both sides of the political spectrum, two sources familiar with the issue say the Obama administration could release a legal document from the Justice Department that forms the basis for its reasoning in the coming weeks. Some conservatives have asked for any findings by the Justice Department's Office of Legal Counsel, which advises the executive branch on tough legal questions. But for now the White House and Justice Department have declined to say whether any such document exists.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Carrie Johnson is a justice correspondent for the Washington Desk.