But presidents like to use recess appointments for expediency or, in this case, to get past obstructions. Republicans were seeking to block President Obama's nominees to the NLRB, which tends to side with unions over businesses. In the Senate, the threat of filibuster had killed confirmation chances, but Obama could appoint members if Congress adjourned. So Republicans in the House held "pro forma" sessions to avoid empowering Obama: They showed up, gaveled in, and gaveled out.
That also meant the Senate couldn't adjourn. Fun fact: This trick was actually pioneered by Democrats during the George W. Bush administration.
The White House decided this doesn't count as being in session and went forward with its recess appointments. This was challenged, which is what today's ruling is about. The President can make a recess appointment without Senate confirmation when the Senate says it is in recess.
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But either the House or the Senate can take the Senate out of recess and force it to hold a "pro forma session" that will block any recess appointment. So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked. That means a sharp limit on this, or any, president's ability to appoint federal officials going forward.
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Continue to article content. Share on Facebook Share on Twitter. Nonetheless, Rappaport says he can see White House lawyers making a strong case to President Obama that he could go forward with a recess appointment. If Obama does not make a recess appointment but instead tries to use political and media pressure to make the GOP Senate consider his nominee, Republicans might nonetheless find the recess power useful.
If blocking an Obama nominee became truly unpopular with swing voters, the Senate could declare a recess in such a way as to give Obama the clear right to make a recess appointment. The Senate — which could be under either GOP or Democratic control — would then take up the issue again in , when the recess appointment expires. But President Obama could still surprise us and make a recess appointment before February If he did, it would engender a fierce reaction and lots of controversy.
Recess Appointments Made by President Barack Obama - Digital Library
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