The Contemporary Presidency: Powering Down the Presidency: The Rise and Fall of Recess Appointments

In late 2007, the five-member National Labor Relations Board (NLRB or the Board) was faced with an impending crisis. This independent board, which is charged with investigating unfair labor practices and has oversight over important labor union proceedings, was running out of time. The terms of three of its five-member board were set to expire in December, which would leave the Board with less than a majority of its members and thus legally unable to make decisions because it lacked a quorum. Just before losing the quorum, however, the Board agreed to delegate its powers to a three-member commission, in which case the remaining two members could satisfy the quorum requirements (a simple majority) necessary to perform the duties of the Board. While seemingly a stopgap measure, the NLRB continued to operate without a true quorum until well into 2010. Ultimately, the Supreme Court decided (in New Process Steel, LP v. NLRB [2010]) that the decisions of the two-member Board, which numbered in the hundreds and spanned more than two years, were invalid. Legally, the NLRB was unable to function. Between the 110th and 112th Congresses, Presidents George W. Bush and Barack Obama both struggled to secure Senate confirmation of their nominees with just 2 of 21 formal nominations ending with success. To maintain a quorum after the Supreme Court ruling, President Obama resorted to a previously common unilateral power: a series of recess appointments. The crisis, however, continued. In 2012, the NLRB was again facing an imminent shutdown. In order to forestall the president from issuing further recess appointments, a procedural trick using pro forma sessions--pioneered by Democrats to thwart President Bush in 2007--was used by Republicans in Congress to prevent a recess of sufficient length to issue recess appointments. (1) In defiance of this strategy, President Obama made four recess appointments, three of which were to NLRB. While President Obama defended his actions as legal (Office of the Legal Counsel 2012), the Supreme Court eventually ruled in Noel Canning v. NLRB (2014) that the nominations were invalid. Legally and practically, the president was barred from making recess appointments by Congress. The growing practice of using pro forma sessions to preempt presidential recess appointments is, arguably, not the most important change to executive nominations politics to occur within the Obama administration. After decades of ever-increasing use of dilatory tactics, the U.S. Senate reformed its procedures so as to reduce the filibuster's bite on the majority of executive nominations. In short, the reform now allows for simple majorities to confirm controversial nominees. When presidents control a majority of the Senate, they can now expect to successfully confirm key nominations such as NLRB officials. The combined influence of pro forma sessions and the Senate rules change will likely be far greater than the mere sum of the parts. When government is divided, pro forma sessions can easily block recess appointments. When government is unified, presidents will have no need of recess appointments for key nominations. Together, these trends may forever alter interbranch politics by removing recess appointments from presidents' standard tool chest. The goal of this article is to investigate the recent changes in the executive nominations process and to consider their influence on the future use of presidential recess appointments. In the following section, I will provide an overview of presidential recess appointments as well as provide some empirical description of this power's use in the past five presidential administrations. Next, I will discuss the political contexts and key elements of two recent developments within the executive nominations process: the rise of pro forma congressional sessions designed to thwart presidential ambitions and the recent Senate rules reform lowering cloture requirements on most nominations to a simple majority. …