Barack Obama is probably not going to be in a terribly good mood between now and January 20, 2017, the day Donald Trump takes the oath of office to succeed him. Trump and his people, not to mention the Republican Members of Congress who have fought Obama tooth and nail for eight years, are champing at the bit to repeal his signature legislative policies, revoke his regulations, and replace his executive-branch appointees, cheering lustily with each shovelful of dirt thrown onto the 44th president’s legacy.
Beyond the personal insults he will endure, and the pain involved in watching his accomplishments being spitefully unraveled, there’s an issue of partisan justice that may be nagging at the president’s conscience. From the day he took office (and actually long before then), Republicans have broken every imaginable unwritten rule about comity and civility and bipartisanship-in-the-national-interest. Last month, David Dayen briskly summed up the elephant’s crimes against the donkey:
Republicans have absolutely no problem breaking any norm in their path to power. They turned the filibuster from a seldom-used tool to a routine exercise. Tom DeLay saw advantage in doing a second redistricting in Texas in 2003 to pick up extra GOP seats, even though states normally redistrict every 10 years; he succeeded. Congress typically passes the debt limit without comment, but Republicans took the country to the brink of its first default, extracting concessions in the process. A minority of the Senate prevented the confirmation for years of any director of the Consumer Financial Protection Bureau simply because they didn’t like the agency. The opposition party would never attempt to conduct foreign policy that differed from the president’s, until Republican senators tried it before the Iran deal.
And, of course, the year-long blockade of [Supreme Court nominee Merrick] Garland, who has not even received a hearing in the Senate Judiciary Committee, violated a long-standing norm.
Yet the GOP paid no price for this deeply irresponsible course of action. Indeed, by so often thwarting Obama and making the federal government seem completely incompetent, they rewarded themselves, as the antigovernment party and as the party “out of power” (in the executive branch, anyway), with the political fruits of partisan gridlock and dysfunction. Yet now, Republicans expect Obama to play by the rules they so often disregarded and give way to the new regime gracefully.
If Obama is indeed in the mood for a final act of defiance toward these vandals, what can he do? Last-minute regulations (apart from some hard-to-reverse environmental actions that he has already taken like offshore drilling bans that are issued for fixed terms) aren’t very fruitful; some can be simply revoked by Trump or his agency appointees, and others Congress can kill under the Congressional Review Act. Yes, he retains the power to pardon right up to the end, but that’s not going to place a more permanent Obama stamp on the public sector.
That leaves one potentially big stick in Obama’s rapidly shrinking arsenal: recess appointments of judges to fill scores of federal-bench vacancies — up to and including Antonin Scalia’s seat on the Supreme Court.
But wait: Didn’t the Supreme Court eliminate recess appointments in a recent decision? Not exactly. In a 2014 decision, SCOTUS unanimously ruled that recess appointments by the president (which only remain in force until the end of the ensuing congressional session) could be thwarted by Senate “pro forma” sessions that technically keep Congress in session perpetually. But the Senate does have to eventually end the session before beginning a new one on January 3, 2017. And a precedent was set by none other than Republican Theodore Roosevelt that a president could make “intercession” recess appointments in the seconds between one swing of the gavel and the other. TR made 193 recess appointments at the beginning of 1903, and while the legality of the action has been questioned, it has never been clearly overturned. If Obama were to follow this procedure, it would take extensive litigation to reverse it, and it might stand after all.
The pretext for judicial-recess appointments is clear enough: Even after Senate Democrats outlawed the filibuster for non–Supreme Court judicial (and executive-branch) nominations in 2013, once Republicans regained control of the Senate in 2015, they began slow-walking judicial confirmations. At present, there are 103 vacancies in the federal judiciary. When Obama took office there were only 54. He could make the argument that the federal courts have been hamstrung by these vacancies, and use recess appointments to fill some or all of them.
If he really chose to make an object lesson of the fruits of GOP obstructionism, Obama could wheel out the Big Bertha: a recess appointment of his Supreme Court nominee Merrick Garland, who has been outrageously denied even the courtesy of a confirmation hearing by Senate Republicans ever since his nomination in March. There is another Republican precedent for the recess appointments of a Supreme Court justice (under Eisenhower). Yes, Republicans could thwart it by belatedly taking up Garland’s nomination and rejecting it (though, they could face a Democratic filibuster unless they choose to kill that option, too). But it would sure get everybody’s attention in a way that could not help but cast blame back on those who obstructed Garland’s confirmation in 2016. As Dayen puts it:
It goes without saying that Obama appointing Garland in this fashion would be highly controversial. Indeed, it would make the nation’s collective head explode. Conservatives would demand the Court immediately block the appointment. However, it is likely they would need Garland to participate in a case that gets a ruling so they could have a plaintiff with standing to say they have been harmed by the Garland appointment. And then they would have to move that case through the lower courts. That process would take several months, and all the while the Supreme Court would have a center-left majority.
None of this is likely to happen, in part because Barack Obama isn’t built that way, and in part because Democrats might fear the gesture would distract attention from the terrible things the new Trump administration and its congressional allies are trying to do to the country on many fronts. Trump’s approval ratio is already terrible; why make him look like a victim of that Kenyan tyrant Obama and his secular-socialist Democratic Party?
But it would be soul-satisfying for Obama to upset his tormenters on the way out the door, so I wouldn’t rule it out entirely before the new Congress is gaveled in.