Another potential means of reaching constitutional settlement with regard to the Recess Appointments Clause would be to design a new set of rules for when and how the President exercises his power under that clause. The question that I will now turn to is whether it would be possible, as a constitutional and practical matter, to do this without a constitutional amendment.
First, though, it’s worth sketching out the rules that might be developed if the interested parties (principally the Senate and the executive branch) sat down to think about it. The most obvious reform would be to take the “recess” out of the RAC. In modern times, the question of whether the Senate is in recess has little if anything to do with the executive ‘s reasons for making recess appointments. As Professor Michael Herz observes, the modern “Senate is simply never out of session long enough for a vacancy . . . truly to need filling before its return.
The real reason that Presidents use the RAC today is not because of the Senate’s unavailability, but because of its inability or unwillingness to act on nominations in a speedy fashion. Although the party that controls the White House always feels this problem with more acuity, I think there is a widespread recognition that it is a problem.
A better approach would be to tie the President’s ability to make temporary appointments not to whether the Senate is in recess, but to whether the Senate has unreasonably delayed in acting on a nomination.
But how much delay is “unreasonable”? One rough way of making this determination would be to see how long it took the President to make the nomination in the first place. If the President moves quickly to make a nomination to fill a vacancy, this is some indication of urgency. Of course, no matter how quickly the President acts, the Senate needs some time to perform its advice and consent function. Thus, the Senate might be given, say, the longer of 60 days or the period that it took the President to make the nomination (there might also be an upper time limit of a year or so).
Once the advice and consent process has dragged on long enough, the President would be authorized to make a temporary appointment. There is, however, no reason why this appointment should last for up to two years, as current practice would permit. Rather, it would make sense for the appointment to expire when the Senate returns nominations to the President pursuant to Senate Rule XXXI. The return of these nominations provides a break in the process, giving the President an opportunity to decide whether to resubmit a nomination or nominate someone else. It would be logical for the temporary appointment likewise to expire, since the President may wish (and the Senate may prefer) a new temporary appointee.
Other questions that should be addressed in designing a new set of rules include: (1) should there be a limit to the President’s ability to make successive temporary appointments to fill the same vacancy and, if so, what should it be? (2) should the Senate’s failure to confirm a nominee over a certain period of time or after two or more re-nominations amount to a rejection? (3) should there be an opportunity for the Senate, either as a body or through the committee of primary jurisdiction to provide “advice,” not merely consent, to the President (e.g,, by providing names of individuals who would be broadly acceptable as either permanent or temporary appointees); and (4) should the President be required to consult with the Senate before submitting nominations and/or making temporary appointments?
In my next post I will consider whether rules of this general type could be imposed through a Senate rule.