Obama’s Recess Appointments Dilemma Is About To Get Worse

January 11, 2012 12:25 a.m.

Despite making several key, contentious recess appointments since Congress left town, the Obama administration is still operating with scores of vacancies, including an unexpected hole at the top of the Office of Management and Budget.

But their options for filing those vacancies are likely limited, unless President Obama is willing to dial his use of the recess appointment power up even further.The days until Congress returns are dwindling, and the GOP is still furious that Obama pulled an end-run around them with a new precedent that Congress can’t use pro forma sessions during weeks-long absences to nullify the President’s recess appointment power. Republicans are not likely, in other words, to cooperate with the White House on key nominations when the Senate is back in session — including the yet-to-be-named OMB director designate.

A top Republican Senate aide says this means Obama might have to deal with those vacancies for a long time — or else expand the precedent his own administration set last week.

Here’s the rub. In justifying their recess appointment decisions to the public, the administration noted that “The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks.”

But the breaks between the last week in January and the first week in August will be very brief ones. Which means that if Obama declines to use his recess appointment power in the next several days, he’ll have three options, none ideal: He can fight it out with Congress and push for regular confirmations; he can wait until August, when Congress goes home for over a month; or he can broaden the parameters of his own precedent, and use the recess appointment during brief one-week vacations between now and then.

Republicans will likely keep holding pro forma sessions during those breaks, challenging Obama to take things further than he already has.

“There won’t be any long breaks between now and August,” the aide said. “If we have the next break it’s going to be a week — he can’t make that argument if we’re going to be in pro forma.”

As far as the Constitution and the Senate rules are concerned, there wouldn’t be much difference between a recess appointment in, say, April, and the recess appointments he announced last week. But their public rationale for the January appointments wouldn’t really stand in April. And after attacking President Obama’s supposed power grab, Republicans would slip the precedent in their back pocket, to be deployed when they control the White House.

And yet it may be the only way for Obama to fill one of his key vacancies in a timely fashion.

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