According to Public Citizen, there’s nothing stopping the President from circumventing the Congress for recess appointments of key positions, including Elizabeth Warren for the Consumer Financial Protection Bureau. And they have the Constitutional passages to prove it.
In a blog post for the organization and a letter to the President, David Arkush writes that, contrary to received wisdom, the House cannot block adjournment of the Senate if the President uses a Constitutional measure to force that adjournment. Now, some of this is academic, because the House has said that they would not move to block their consent of a Senate adjournment under Article I, Section 5, clause 4 of the Constitution (“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting”). But Arkush points out that the President has powers in this area as well:
A little bit later—in the very same Constitution—is this passage on presidential powers:
“[The President] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”
In Article II, section 3, clause 3, the President is given the ability to adjourn Congress. So he could do so, or threaten to do so, and then make his recess appointments. There’s certainly plenty of reason for the President to play hardball on this if he wants: Republicans are holding multiple positions hostage for unrelated policy changes, and any action by the House to stop an adjournment of the Senate to block appointments (where the House has no duties) would be a major expansion of legislative power.
Keep in mind that an adjournment motion cannot be filibustered, so 50 votes in the Senate can get it done. That, combined with the Presidential power of adjournment, gives no excuse for Democrats to say that Republicans are “blocking” recess appointments. They’re most certainly not. It’s in the Constitution.
Arkush wrote a formal letter expressing this that I’ll put on the flip. This should be widely known. There’s nothing stopping the President from recess-appointing Elizabeth Warren to CFPB, Peter Diamond to the Fed, or any other qualified nominee. If the President wants to stretch executive power in the area of warmaking, the least he could do is be consistent and not even stretch but use the power granted to him under the Constitution.