Posted on 17 January 2013.
Abraham Lincoln fully understood the scope of executive power and the limits of presidential patience: “Things may come to those who wait, but only the things left by those who hustle.” President Lincoln performed his appointment duties personally and resented Senate confirmation delay. President Bill Clinton accurately described Lincoln, in reference to the current biopic, as having had “steely resolve.” Lincoln boldly appointed all the officials and judges needed to preserve a functioning national government. Abraham Lincoln thus signed hundreds of recess commissions.
In this week before — and during the two months after — he retakes the oath of office, Barack Obama should demonstrate Lincoln-like appointment resolve. The Senate is now formally recessed for a two-week break. The president has an uncontestable opportunity to make recess appointments for the many offices and judgeships kept vacant by partisan congressional obstruction. When the Senate recesses again in February and then again in March, Obama should sign more recess commissions (regardless of any renewed pro forma scheduling gimmicks).
Build Public Support for Executive Action
The appointment of a Director for the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives is long overdue. For over six years, confirmation of an ATF Director has been purposely blocked by delays and holds from Senate servants of the firearms industry. George W. Bush’s exceptionally well qualified ATF nominee was blocked for two years by extremists of his own party. Obama’s 2010 nominee for ATF Director, Andrew Traver, was also blocked. The president’s new nominee, Acting Director B. Todd Jones, should be confirmed immediately upon the Senate’s return from recess.
In both his inaugural address and State of the Union speech (to be delivered on Lincoln’s birthday), Barack Obama should restate his expectations for quick Senate confirmation for all nominees. The confirmation process should take days and weeks; not months and years. Along with parties and balls, Barack Obama supporters should celebrate his inauguration by building public support for bold appointment action. Supporters should also redouble public support for his policies and directly challenge his obstructionist opponents. As Abraham Lincoln stated: “Public sentiment is everything. With public sentiment, nothing can fail. Without it, nothing can succeed.”
Insulate Cabinet Picks; Fully Staff the Government
A fully functioning national government is critically necessary for our republic to successfully confront its impending problems over the next four years. As I have argued in prior posts and elsewhere, the Constitution’s framers intended the president to keep the government fully staffed by designing two appointment methods which operate concurrently. Recess commissions, lasting up to two years, carry the same authority as those appointments with Senate confirmation.
The Senate confirmation process neared paralysis during the past four years. Through slow-walking, holds, and filibusters, obstructionists purposely kept high-level posts empty to impede the national government’s ability to function. Offices critical to economic and security interests have been left years without leadership. Despite President Obama’s best efforts to keep the confirmation queue filled with excellent (and historically diverse) judicial nominees, our courts still struggle with many trial and appellate vacancies.
Even with Senate filibuster reform imminent, partisans continue to block many nominees and pledge further obstruction. Individual senators have already threatened to block his CIA pick John Brennan and Treasury nominee Jack Lew. Ideologues are lobbying against the president’s exceptionally well-qualified Defense nominee. Like Lincoln, Chuck Hagel, as a Republican pragmatist who puts country first, will be “battered from all sides.” The president should consider offering recess appointments to all pending nominees. In addition to instantly filling important posts, recess commissions provide nominees with significant insulation from the increasingly abusive confirmation process. If filibuster reform is successful, the Senate may still offer its advisory consent vote to effect an ordinary confirmation for any recess appointee.
It is time for a strong appointment push. President Obama should sign scores of commissions in order to (as Lincoln stated at his second Inaugural) “finish the work we are in.” Steely appointment resolve — through both recess and ordinary commissioning processes — is mandated by Obama’s inaugural oath (which will again be taken with a hand on the Lincoln Bible). Article II, Section 3 of the U.S. Constitution requires that the president “shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”
Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America School of Law.
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