President Obama today made an unprecedented “recess” appointment even though the Senate is not in recess – “a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” according to Senate Republican Leader Mitch McConnell (R-KY).
It turns out that the action not only contradicts long-standing practice, but also the view of the administration itself. In 2010, Deputy Solicitor General Neal Katyal explained to the Supreme Court the Obama administration’s view that recess appointments are only permissible when Congress is in recess for more than three days. Here’s the exchange with Chief Justice John Roberts:
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?
MR. KATYAL: The -- the recess appointment power can work in -- in a recess. I think our office has opined the recess has to be longer than 3 days. And -- and so, it is potentially available to avert the future crisis that -- that could -- that could take place with respect to the board. If there are no other questions –
CHIEF JUSTICE ROBERTS: Thank you, counsel.
Speaker Boehner called the appointment an “extraordinary and entirely unprecedented power grab,” and noted that the position “had not been filled for one reason: the agency it heads is bad for jobs and bad for the economy.” Read his full statement here, and read the statement from Senate Republican Leader Mitch McConnell (R-KY) here.