The Catholic University of America


Dual Views on the President's Power of Recess Appointments


Catholic University law school clinical assistant professor Victor Williams (above) may not enjoy the national name recognition of syndicated columnist George F. Will (left) but the two men share at least one thing in common: strong (and divergent) opinions on the appropriate use of presidential recess appointments.
Taking polar-opposite points of view, both men have published columns on the subject in national news forums. Will’s is the most recent, published on Oct. 10 in the Washington Post. In “Obama’s selective defense of the Constitution,” the renowned conservative criticizes President Obama’s decision earlier this year to use recess appointments to fill three seats on the National Labor Relations Board (NLRB), even though the Senate said it was not in recess.

Will’s major points of contention include these:
  • The Recess Clause says the president’s power extends only to vacancies that “happen” while the Senate is in recess.
  • For more than a century, it was generally accepted that recess appointments could fill only vacancies that occurred between sessions, not in recesses during sessions.
  • President Obama treated the Senate’s unwillingness to act on his NLRB nominations as an inability to act, and said this inability constituted a de facto recess.
  • Senate Republican Leader Mitch McConnell and others have filed a brief arguing that the recess appointments “eviscerate” two of the Senate’s constitutional powers — to “determine the rules of its proceedings” and to reject presidential appointments.
Professor Williams, who has published on the same subject a number of times in the Huffington Post, the nation’s most widely read online news source, wonders if he and columnist Will read the same Constitution.
“Will's piece is a classic example of modern commentary mischaracterizing the federal appointment responsibility as power equally shared between the president and the Senate; the Constitution creates no such equal division of appointment authority. Indeed, the Framers sought to substantially limit legislative involvement with appointments,” says Williams.
Williams maintains that the Senate plays games with presidential nominations that Republicans oppose by claiming to be in session when it effectively is not, thereby tying the president’s hands to act and bottling up any movement on key vacancies within the government.
“It is the repeating cycle of partisan obstruction payback -- worsening during each of the past three presidencies -- that marginalizes the Senate's role. If the Senate is not sitting as a deliberative body able to provide timely confirmation consent, the Executive may fill any vacant federal office,” Williams argues.