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Understanding The Recess Appointment Truce


Congress is in recess this 4th of July week and, for a change, it's a real recess. Lawmakers haven't bothered with the kind of going through the motions sessions, a relatively recent political strategy that have marked some past legislative breaks. That suggests at least a temporary truce between the Senate and the White House over the contentious issue of presidential appointments.

NPR's Scott Horsley is taking a break from his own 4th of July recess to talk about this with us. So, Scott, what makes this congressional recess unusual?

SCOTT HORSLEY, BYLINE: Well, Audie, historically, presidents have sometimes used these breaks in the legislative calendar to make what are called recess appointments. That is, putting people into jobs without having to go through the trouble of the confirmation process. It's a power that was spelled out in the Constitution back in the days when it took a long time for lawmakers to get to the Capitol, and so you didn't want to let key jobs go unfilled in the interim.

But more recently, presidents have used the power to sidestep the Senate and install nominees who could not otherwise be confirmed. And as you might imagine, the Senate didn't like that very much. So, beginning in the last years of the Bush administration and continuing under President Obama, we've had a kind of cat and mouse game where Congress just doesn't go into recess, in order to avoid the president making recess appointments.

Now, lawmakers will still go on break but every few days, some poor lawmaker would have to come into the chamber, turn on the lights, gavel the session open and closed. What we're seeing this week, though, is a real recess with none of these pro forma sessions. And that suggests a gentlemen's agreement where the White House says we won't try to jam somebody through and you lawmakers can go enjoy your hot dogs and fireworks in peace.

CORNISH: And in the meantime, we've actually seen some of the president's nominees win confirmation in the Senate?

HORSLEY: Yeah. Just last week, the Senate confirmed two cabinet secretaries, Anthony Fox at Transportation, Penny Pritzker at Commerce. The week before, they confirmed the new trade representative, Michael Froman. And we've also seen some movement on judicial nominees, 26 confirmed so far this year, a couple more pending next week.

You might remember last month, the president had a high profile event in the rose garden where he nominated three federal appeals court judges all at the same time and urged the Senate to give them a quick up or down vote. It looks like Republicans are trying to avoid the appearance of an orchestrated campaign to hold up the president's nominees.

CORNISH: That said, there are still a few key vacancies in the cabinet.

HORSLEY: Yeah, and these nominees could still face a tough road ahead. Some Republicans have objected to Thomas Perez, the president's pick to be the new Labor secretary. And Obama's nominee to head the EPA is also a lightning rod, mainly because the president's counting on that agency to play a big role in battling climate change. And a lot of Republicans don't want the EPA to do that, even though the nominee herself, Gina McCarthy is considered a pragmatic regulator.

She's worked for a lot of Republicans in the past, including Mitt Romney. One other nominee we should mention who's still out there is Richard Cordray. He's the head of the Consumer Financial Protection Bureau and Obama has re-nominated Cordray after using a recess appointment to install him in the post last year.

CORNISH: And that recess appointment is getting some extra legal scrutiny, right?

HORSLEY: Right. We talked about how sometimes Congress use these pro forma sessions to avoid a recess and stymie a recess appointment. Last year, Obama got frustrated with that. He said, look, these pro forma sessions are a sham. He simply declared that Congress was in recess and he appointed Cordray, along with several members of the National Labor Relations Board.

Well, one of the companies that's regulated by the NLRB challenged that move. And last week, the Supreme Court agreed to take up the case. If they overturn the NLRB appointments, that could affect Cordray as well. If he were removed from the director's post, the Consumer Financial Protection Bureau would have some of its teeth removed. And the high court could also severely limit the president's power to make recess appointments in the future.

CORNISH: That's NPR's Scott Horsley. Scott, thank you.

HORSLEY: My pleasure, Audie. Transcript provided by NPR, Copyright NPR.

Scott Horsley is NPR's Chief Economics Correspondent. He reports on ups and downs in the national economy as well as fault lines between booming and busting communities.
Audie Cornish
Over two decades of journalism, Audie Cornish has become a recognized and trusted voice on the airwaves as co-host of NPR's flagship news program, All Things Considered.

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