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With Congress in recess after passing major health care legislation, President Barack Obama took the opportunity to install several of his appointees without receiving approval from the Senate.
The move is known as a "recess appointment," and it stems from a power enumerated in the U.S. Constitution, which states, "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." That means Obama can make the appointments now, and those appointees will be able to serve until the end of 2011.
Other presidents have made recess appointments, both recently and throughout history, and those appointments have regularly drawn criticism from the opposite party. We remembered that Obama, while serving as a U.S. senator, opposed the recess appointment of John Bolton, President George W. Bush's pick to become U.S. ambassador to the United Nations. So we decided to test Obama on the Flip-O-Meter to see whether his decision to make recess appointments represents a change in position.
We'll start with the 2005 Bolton appointment, and then compare it with what Obama did in 2010.
President George W. Bush appointed Bolton to be ambassador of the United Nations after senators held up the confirmation in two separate votes of 56-42 and 54-38. The nomination required 60 votes before formal approval.
Opponents said Bolton was the wrong person for the job because he was known as a critic of the United Nations. Democrats said that history made him poor choice to become ambassador to the organization.
But Democrats were also angry that Bolton had submitted inaccurate information to the Senate. The State Department inspector general had interviewed Bolton about the accuracy of intelligence leading up to the Iraq war, but Bolton had submitted testimony indicating that he had not been interviewed.
That dispute prompted Senate Democrats to send a letter to Bush protesting the recess appointment. Obama was one of 36 senators to sign the letter. (Joe Biden, now Obama's vice president, and Hillary Clinton, Obama's secretary of state, signed it as well.)
"In light of the fact that John Bolton was not truthful to the Senate Foreign Relations Committee on the questionnaire he swore was truthful, we ask that you do not make a recess appointment of Mr. Bolton to be the Ambassador to the United Nations, and instead submit a new nomination to the Senate," the letter said. "Mr. Bolton's excuse that he 'didn't recall being interviewed by the State Department's Inspector General' is simply not believable.
"Sending someone to the United Nations who has not been confirmed by the United States Senate and now who has admitted to not being truthful on a document so important that it requires a sworn affidavit is going to set our efforts back in many ways," the letter said.
Obama, a member of the Senate Foreign Relations Committee, told the Chicago Tribune, "To some degree, he's damaged goods," adding, "I think that means we'll have less credibility and, ironically, be less equipped to reform the United Nations in the way that it needs to be reformed."
But Obama also said that he thought Bush was within his rights in making the appointment. "The president is entitled to take that action, but I don't think it will serve American foreign policy well," Obama said in an interview.
Obama issued his own separate statement on the Bolton nomination after the recess appointment. He offered strong words of criticism -- "John Bolton is the wrong person for the job and the decision to appoint him today will not serve American foreign policy well at all" -- but the future president did not complain in his statement that it was a recess appointment. In fact, he didn't even mention it.
In making his recess appointments on March 27, 2010, Obama said he was moving forward on nominees in the face of Republican intransigence.
"The United States Senate has the responsibility to approve or disapprove of my nominees. But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis," Obama said in a statement. "Most of the men and women whose appointments I am announcing today were approved by Senate committees months ago, yet still await a vote of the Senate. ... I simply cannot allow partisan politics to stand in the way of the basic functioning of government."
One of his 15 recess appointments likely wouldn't meet that criteria. In February, 33 senators voted to block the nomination of Craig Becker to the National Labor Relations Board with only 52 -- short of the 60 needed -- voting to proceed.
Becker is an attorney who previously worked for the Service Employees International Union and the AFL-CIO, unions that strongly supported his nomination. Senators critical of labor unions opposed Becker's nomination because they said he would favor unions on the National Labor Relations Board, which is responsible for resolving labor-management disputes.
"Parties before the Board, whether union or employer, have a right to a fair and impartial tribunal," said Sen. John McCain, R-Ariz, in February. "The confirmation of an officer and associate general counsel of two of our nation's largest unions for a term on the National Labor Relations Board will make the appearance of justice and many of the decisions in which he participates impossible to achieve."
McCain said he feared Becker would promote the policy known as "card check," which makes it easier for unions to organize using signed authorization cards rather than a secret ballot. Critics say that card check makes it easier for unions to intimidate workers into joining, but unions say that it helps workers to sidestep management efforts to suppress unions.
So where does that leave us on the Flip-O-Meter? Obama opposed a controversial recess nomination in 2005 but put forward his own in 2010.
Keeping in mind the statement Obama put out on Bolton, it's worth noting that Obama opposed Bolton on his merits, but didn't complain about it being a recess appointment. Indeed, Obama specifically said Bush was within his rights to make the nomination, just as Obama as president now has the right to make recess appointments.
On the other hand, Obama did sign on to a group letter that urged Bush to "submit a new nomination to the Senate" rather than go forward with a controversial recess appointment.
If every appointee for whom Obama made a recess appointment was noncontroversial, Obama would have a good argument that the two situations were different. But just as Democrats opposed Bolton on policy grounds, so too are Republicans opposing Becker on policy grounds. While Democrats raised issues of personal honesty in the case of Bolton -- accusations that Republicans have not leveled at Becker -- we think the cases are similar enough to make Obama's recess appointment for Becker a Half Flip.
U.S. Constitution, Article 2, Section 2
Congressional Research Service, Recess Appointments: Frequently Asked Questions, March 12, 2008
The White House, President Obama Announces Recess Appointments to Key Administration Positions, March 27, 2010
The White House blog, An Unprecedented Level of Obstruction, March 27, 2010
U.S. Senate, vote for cloture on the nomination of Craig Becker, Feb. 9, 2010
Obama Senate Web site via The Internet Archive, Obama statement on the recess appointment of John R. Bolton to Ambassador of the United Nations, Aug. 1, 2005
The National Labor Relations Board
The White House, recess appointments
Congressional Record, comments of Sen. John McCain on the nomination of Craig Becker, Feb. 9, 2010
U.S. Senate, vote for cloture on the nomination of John Bolton, May 26, 2005
U.S. Senate, vote for cloture on the nomination of John Bolton, June 20, 2005
Nexis database, Letter from Senators on the appointment of John Bolton, July 29, 2005
Associated Press, Bush set to by pass Congress with Bolton UN nomination, July 29, 2005
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