When it comes to the U.S. president making appointments when the Senate is out of town, there is a constitutional argument to support it. The same Constitution provides an argument for senators who dislike those appointments.
Fittingly, the judiciary will settle the battle between its co-equal branches of government.
The U.S. Supreme Court heard arguments earlier this week regarding the proper use of recess appointments, a power specifically enumerated to the president. Such appointments almost have become routine during President Barack Obama's tenure as the minority Republicans repeatedly have delayed hearings to assess nominees' qualifications. The specific case centers on National Labor Relations Board appointments Obama made in January 2012. The plaintiffs claim the Senate was not in recess when the president acted.
It was much easier to know when senators were on the job back when recesses lasted for months between sessions. Lawmakers needed lots of time to ride their horses to and from their home states and tend to crops in between. It was precisely these extended breaks the Founding Fathers knew must be dealt with. Judges who died or ambassadors who resigned performed important enough tasks that required immediate replacements -- without waiting for the harvest and then the long ride back before the Senate could convene.
Today, with all the federal holidays and state work periods, breaks are built in almost every month of the year. And when a particular hiatus seems to be going long, pro forma sessions are held. No business is conducted, and generally one designated senator shows up to gavel the session in and out.
However thin the guise, the Constitution calls for each chamber to "determine the rules of its proceedings." If the Senate claims it's in session -- it is.
The nation's highest court will determine whether recess appointments only can be made during the official "recess" between sessions, whether vacancies created before a recess begins qualify, and whether the pro forma sessions prevent a "recess" from being declared.
One branch of government appears destined to lose a centuries-old tradition codified in the U.S. Constitution. Either the president is going to lose his power to make recess appointments, or the Senate will lose its advise and consent role in some fashion. Either way, the process is about to change.
Of course, it's changed anyway. Senate Democrats recently amended chamber rules to reduce the number of votes needed for confirmation. Since November, all nominees except those for the Supreme Court only need a simple majority instead of 60 votes. In these contentious times, the weakening of the filibuster struck Democrats as the only way to get nominees through.
Unless or until the country demands a functional and bipartisan Congress, that rule change sets a dangerous precedent. If the same party does not control both the White House and the Senate, it could halt the appointment process in its tracks.
If Congress were interested in doing something productive, lawmakers could begin identifying all positions filled by presidential appointment, assign each a maximum number of days the position could be open, and the maximum number of candidates the minority party can reject. We need something that ensures the business of the country continues, especially when the Senate and House can't fashion consent on whether they're in session or not.
Editorial by Patrick Lowry