A President send their nominee here? Don't be silly!

With the news today that President Obama will use a recess appointment to install Donald Berwick at the Centers for Medicare and Medicaid services, I think one thing is perfectly clear: it’s time for the practice of recess appointments to end.  Well, for the practice to end as it is currently…practiced.

Recess appointments did once have a place.  At a time when recesses between Congresses lasted six or nine months, the President, who worked all year long, needed the power to bring on people temporarily.  However, that’s different now; the recesses are very short, lasting only a couple weeks at most.  I don’t want to say that recess appointments have lost their intended purpose – according to the document I linked to above, both the Constitution and documents by the Founders say little on intentions – but I do feel comfortable saying that recess appointments have lost their traditional and historical purpose.

Instead, recess appointments have turned into a political tool.  Should the President feel like he doesn’t have the votes to get a nominee confirmed, he’ll instead opt to use a recess appointment, essentially circumventing that necessary check on his power.  The Senate needs to be able to vette the nominee, to make sure they are up to the task.  Also, the hearings are necessary to make sure the nominee should actually be assigned to that task.  After all, you don’t want nominees ones that are favor of rationing care, or the ones that are in favor of dismantling the institution they’re sent as a representative to.  The task of interviewing that person is crucial in ensuring that our republic functions.  Otherwise, with the way things are going with recess appointments, and in conjunction with proliferation of “czars,” you end up getting an executive that feel they’re accountable to nobody, which would be a serious danger to democracy.

I don’t think Obama intends on becoming a dictator or anything, but his participation in using recesses this way doesn’t exactly show that he understands the necessity of putting a nominee in front of congress.  He has cited threats of a tough nomination as reason to appoint Berwick in recess, but to that I say, “tough luck.”  Even if you accept Obama’s whining of “playing politics,” I still say that Berwick should go through the hearing process.  I don’t like the opposition party holding up nominations “just because” any more than he does – because the Dems have never done that, right? – but I still think those things are minor compared to the need to properly interview the people who are being asked to lead some of the most powerful agencies in the government (to the tune of $800 billion).  It is that important.

I think Presidents need learn why hearing are important, and stop using recess appointments as a political rebuke to Congress.  I would actually be in favor of a constitutional amendment that doesn’t eliminate recess appointments, because they can still have a legitimate purpose, but rather narrowly defines what they should be used for.  However, I think one is unlikely to garner much support.  For all of their “we don’t like this” talk, I don’t seem to remember Republicans putting up much of a fuss when it was President Bush making them.  I don’t think it’s a stretch to say that they would fight to their last breath to keep recesses unrestricted just as much as Democrats would.  Maybe there is some support out there for reforming this practice, but among the legislators themselves I think it unlikely to get much play.  So for the time being, expect to see an escalating number of politically-motivated uses of the recess appointment.