Earlier this week, the White House announced that President Barack Obama would be making a recess appointment of Donald Berwick to run the Centers for Medicare and Medicaid Services. While recess appointments occur somewhat regularly, you might be wondering what exactly are they, and why do they happen?
Glad you asked!
As AAUW members know, under most circumstances, the president and the Congress share responsibility for filling thousands of executive and judicial branch positions: The president makes the nomination, and it’s up to the Senate to confirm or reject the nominee. This basic process is, in fact, laid out in the Constitution per the “advice and consent” clause.
What is perhaps less well-known, however, is that the president also has the power to bypass the legislative branch’s role in the process when the Senate is in recess. This, too, is found in the Constitution: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
Let’s take one half of that clause at a time. First, we see that the president is well within his constitutional authority when he elects to fill a vacancy during a Senate recess. At the time the Constitution was written, having a recess appointment clause was quite a sensible option. Washington, D.C., was quite literally a swamp during the days of the Founders; senators were only in town for short legislative sessions, and travel to the nation’s capital could take days or even weeks. As such, waiting for senators to confirm nominees could often be highly impractical. Hence the ability of presidents to speed up the process.
Today, of course, the recess appointment decision is often made on political grounds. For instance, several Republican senators had made rumblings that Berwick’s confirmation would likely not be a smooth one, to the point where Democrats hadn’t even yet scheduled a hearing on his nomination. Moreover, the White House really wanted the head of CMS in place as the new health reform law begins to be implemented. Put the two together, and you’ve got yourself a pretty perfect recipe for a recess appointment.
But recess appointments aren’t a panacea for the president who makes them; remember, there’s a second half to that clause mentioned above. And that is, those appointed in this fashion may only serve until the end of the next congressional session. In other words, Dr. Berwick has a new job, but only through the end of 2011. At that point, his nomination will expire, and he will be forced to vacate his position. Should the White House wish to keep him on board, they will have to resubmit his nomination and start from scratch.
In today’s political times, a recess appointment is often indicative of the failure of the legislative and executive branch to properly work together on the nomination process. When President George W. Bush engaged in the process, Democrats cried foul. When President Obama has done so, Republicans have followed suit. AAUW’s position on the matter is laid out in our judicial nominations position paper, but the same principle holds for executive branch nominations as well: “All candidates should be subjected to the highest standard of scrutiny, and the integrity of the process should not be hastened or tainted by the agenda of either political party.”
