Max Baucus blasts Barack Obama’s recess appointment of Donald Berwick, but is it unconstitutional?

  Barack Obama has decided to install Donald Berwick as his head of the Centers for Medicare and Medicaid Services by using a recess appointment. This has been met with huge opposition by the Republican leader Mitch McConnell, who said the following:

As if shoving a trillion-dollar government takeover of healthcare down the throat of a disapproving American public wasn’t enough, apparently the Obama administration intends to arrogantly circumvent the American people yet again by recess-appointing one of the most prominent advocates of rationed healthcare to implement their national plan

    It is not surprising that  Mitch McConnell would be so opposed to the recess appointment of a radical that has openly supported both healthcare rationing and using the healthcare reform bill to redistribute the wealth, I oppose Donald Berwick and his policies, but I am not going to sit here and fain outrage at the president for making this recess appointment. This is nothing new, hell President Bush used a recess appointment to name John Bolton as ambassador to the United Nations– which was met with the same outrage from the left. However, I am outraged that a person that advocates healthcare rationing would be named to the   Centers for Medicare and Medicaid Services. But my opposition to Donald Berwick is not the topic of this post.

  Donald Berwick was considered so controversial that even Democrats weren’t on board with his selection, refusing to even hold a hearing on this man. While I am not outraged that Barack Obama would use a recess appointment, I do find it interesting that none other than Max Baucus has actually come out and blasted the president for this decision:

Senate confirmation 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

  Both he and Mitch McConnell are on the same page, believe it or not. This may be the one time that Barack Obama has made good on his promise to unite the nation. Donald Berwick is such a radical that very few politicians on either side of the aisle wanted to see him confirmed– Barack Obama has finally drawn a consensus in congress, although it is in opposition to himself that he has drawn Max Baucus and Mitch McConnell together. There seems to be a growing rift between the more moderate Democrats and the liberal Democrats, and this recess appointment could highlight the fact that some less liberal Democrats in congress may have reservations about Barack Obama. We need to be extremely leery of a person that the Democrats are so willing to shun. But that is not the main point of this post either.

  So what is the main point of this post? Many presidents over the years have used the recess appointment to name people to positions that the senate refused to bring to the floor for confirmation. Is this constitutional? Both Mitch McConnell and Max Baucus accuse the president of circumventing the constitution by using a recess appointment, but is that true? Whenever it is perceived by congress that the president has done an end around and bypassed their approval process we can rest assured that tempers will flare, but do they have a legitimate point? At first I thought that there was nothing to this and that this was just political posturing– after all, it has been done so often in the past that it has to be constitutional, but after re-reading the constitution I am beginning to wonder if they have a point.

  Article 2 Section 2 of the constitution states that ” he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” This means that the congress must approve any nominee before he can be appointed to his position. This was done to insure that the president did not have too much power.

  But Article 2 Section 2 of the constitution goes on to say that “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.”

  This gives the president the right to make recess appointments, but in my opinion of that clause a literal interpretation of the meaning would be that the vacancy must occur while the senate is in recess, certainly this was not the case– neither was this the case when John Bolton was appointed as ambassador to the United Nations– because the vacancy didn’t happen during the recess, but rather that congress refused to vet the candidate before the recess.

  This seems to be a grey area and as far as I can tell it has never been adjudicated. It certainly seems as if presidents have found a loophole in the constitution to gain more power than the constitution was designed to give them. I am actually surprised that this has never been challenged before, but until it is we can be upset that Barack Obama was able to name this radical to a position of power, but we must remember that he was following the precedent of former presidents who did the same.

  As someone who considers himself a constitutionalist and an originalist, I think it is beyond time that we found out if recess appointments done in this fashion are constitutional or not.