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Saturday, December 3, 2016

Update: At 12:00 today the new 113th Congress was sworn in, so the leadership opportunity described in this article has now been lost

President Obama campaigned on the promise that in his second term he would bring leadership to our polarized nation.

The president’s first term was, in part, stymied by a polarized Congress. At the same time, many astute observers contended that the president lacked the grit to fight for the values he espoused and the policies he promised in his campaign.

In the moments before the Senate opens its new session on January 3, President Obama will have a once-in-two-years moment to show that he has every intention of taking a far tougher, far less conciliatory attitude with the new 113th Congress.

When the gavel drops to end the 112th session of Congress, Obama will have — as far as I understand existing precedent — a rare opportunity to make recess appointments. Right now, one analysis of the White House website shows 170 nominations pending before the Senate. Under the recess appointment power provided by the Constitution to the president he could, if he chose, install all of these individuals in office for the next two years.

There are a variety of interpretations of the reason for the recess appointment power of the president. My analysis is that the overarching purpose of the provision is to ensure that the government can function by allowing the president to fill open positions where the Senate has failed to act.

In addition to ensuring that his administration can function, and that much-needed members of the judiciary are added to the bench, a sweeping set of appointments by the president would have extraordinary symbolic value.

According to the Congressional Research Service, President Bill Clinton made 139 recess appointments. President George W. Bush made 171, and as of January 5, 2012, Obama had made 32 recess appointments. In essence, this president has used this power far less than his predecessors from both sides of the aisle. By demonstrating that he now intends to use the full powers of his office, President Obama would send an important message to the Congress and citizenry. He would demonstrate the he intends to lead –with all of the powers at his disposal.

Teddy Roosevelt provides the historical precedent for such appointments. As noted by The Washington Post,

“At high noon on Dec. 7 1903,” Senate associate historian Betty K. Koed has written, the Senate president pro tem brought down the gavel to end one session of the Senate and then said “the Senate will now come to order.”

“In that moment between sessions,” Koed wrote, “during that split-second of time it took . . . to wield the gavel, President Theodore Roosevelt made 193 recess appointments.”

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