Thursday, July 15, 2010

Questions about Berwick's Recess Appointment

All ten Republicans on the Senate Finance Committee yesterday asked Chairman Max Baucus for a hearing on President Obama's recess appointment of Dr. Donald Berwick as Administrator of the Centers for Medicare & Medicaid Services in the Department of Health and Human Services.  (Letter linked from Politico.)

President Obama nominated Dr. Berwick on April 19, 2010, and appointed him under his recess appointment authority on July 7, 2010, during an 11-day Senate intrasession recess.  Dr. Berwick was sworn in on Monday.

The Republicans claimed that a hearing "had been recommended for the week of June 21," but that "the President circumvented the nomination process . . . by using his authority to recess appoint Dr. Berwick to the position."  They called for a hearing "as soon as possible so that the President's recess appointment does not result in circumventing the open public review that should take place for a nomination of such importance."

Senator Baucus echoed the concerns, stating that he was "troubled" by the process.  "Senate confrimation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee--and answered," he said, according to Politico.

Article II, Section 2, of the Constitution authorizes recess appointments:

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.

And the Justice Department has consistently taken the position, since 1921, that the President may make intrasession recess appiontments if they are of substantial length.  What is "substantial"?  Attorney General Daugherty provided some guidance in his seminal advice in 1921, explaining that recess appointments could be made during any recess of such duration that the Senate could "not receive communications from the President or participate as a body in making appointments."  But "the line of demarcation cannot be accurately drawn."  Instead,

the President is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate.  Every presumption is to be indulged in favor of the validity of whatever action he may take.

Daughterty concluded that a 28-day intrasession recess was long enough for a recess appointment; the Executive Branch has substantially shortened that period since.

Notably, nobody seems to be claiming that President Obama's recess appointment was unconstitutional.  Given the practice in recent administrations, that claim would be a non-starter.  Instead, the Republicans' letter and Baucus's statements reflect the purposes of Senate advice and consent in the ordinary course of things and, more generally, the purposes of congressional oversight.

SDS

http://lawprofessors.typepad.com/conlaw/2010/07/questions-about-berwicks-recess-appointment.html

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Comments

What was the reason for the time lag between the nomination (April 19) and the "recommended" hearing date 9 weeks later? Is this one of those secret hold cases?

Posted by: eli bortman | Jul 16, 2010 6:44:30 AM

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