Recess Appointment Must Still Be Approved by Congress

The White House appointed Dr. Donald Berwick of Harvard Medical School as the new Administrator of the Centers for Medicare and Medicaid Services, Department of Health and Human Services (CMS) on July 7, using a recess appointment, a process that allows the President to make an appointment to a federal office without the normal Senate approval.

The President faulted Congress for delaying approval of this and many other nominations now before the Senate — 189 nominations in total, 49 of which have been pending for more than six months, according to today’s Press Briefing. In a press release, the President stated, “it’s unfortunate that at a time when our nation is facing enormous challenges, many in Congress have decided to delay critical nominations for political purposes.” He also called on Congress to “…put politics aside and move forward on these vitally important positions.” Dr. Berwick was originally nominated by President Obama on April 19, 2010.

Questions from the Press

During a Press Briefing today, Press Secretary Robert Gibbs was questioned about potential hearings to confirm Dr. Berwick, suggesting that Democrats “flinched” when Charles Grassley, the ranking Republican on the Senate Finance Committee, recently requested such hearings be held. Mr. Gibbs did not directly answer the question.

A reporter then suggested that perhaps the Administration wanted to avoid a hearing because of some statements made by Dr. Berwick about health care rationing, income redistribution, and praise for the nationalized health service in Britain. Mr. Gibbs defended the new Administrator, claiming that Dr. Berwick is “uniquely and supremely” qualified to run an agency the size of CMS. He also pointed out that the two previous administrators of CMS, appointed by the Bush administration, are both strongly supportive of Dr. Berwick’s appointment.

Dr. Donald Berwick is President and CEO of the Institute for Healthcare Improvement, Clinical Professor of Pediatrics and Health Care Policy at the Harvard Medical School and Professor of Health Policy and Management at the Harvard School of Public Health. Also, he is a pediatrician at Boston’s Children’s Hospital and consults for Massachusetts General Hospital.  Dr. Berwick graduated summa cum laude from Harvard College, holds a Master in Public Policy degree from the John F. Kennedy School of Government, and graduated cum laude from Harvard Medical School for his medical degree.

The Recess Appointment Process

A recess appointment is the appointment, by the President,of a senior federal official while the Senate is in recess. Typically, the most senior federal officers are nominated by the President, but must be confirmed by the Senate before assuming office, as required by the U.S. Constitution. However while the Senate is in recess the President can act alone by making a recess appointment.

To remain in effect, however, a recess appointment must still be approved by the Senate before the end of the next session of Congress. If the Senate does not approved the nominee, then the position becomes vacant again. Currently, this means that a recess appointment must be approved by roughly the end of the next calendar year.

Recess appointments are authorized by Article II, Section 2 of the U.S. Constitution, which states:

“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.”

To see the original press release from the White House, click HERE.

For a transcript of today’s Press Briefing, click HERE.