Bersin may not need Senate confirmation
Alan Bersin, who President Barack Obama installed as commissioner of Customs and Border Protection this week, may never have to obtain Senate confirmation to finish out his term, according to analysis of the Constitution and Senate rules by the Congressional Research Service.
Over the weekend, Obama used a loophole to bypass the constitutional requirement for Senate confirmation of high-level political appointees and appoint 15 people whose nominations had been mostly bottled up for months by Republican parliamentary tactics.
Bersin's nomination was not subject to a 'hold' by any individual senator seeking to delay a final vote, but rather fell victim to a slow vetting process in the Senate Finance Committee.
Obama took advantage of the rules to name Bersin and the other nominees to their posts on an interim basis when the Senate was out of session for the Easter recess — hence the term 'recess appointment.' The initial assumption, as AmericanShipper.com reported Monday, was that the recess appointments would only last until the current Senate term expires in late 2010 or early January 2011.
It turns out, according to the Congressional Research Service, the recess appointments remain in effect until the end of the next session of Congress. The second session of the 111th Congress will end later this year and the first session of the 112th Congress likely will end sometime in late 2011, depending on when the Senate adjourns.
The Obama administration lasts until January 2013, unless the President wins re-election for a second term. So Bersin would be out of a job a year before Obama's first term ends.
Or, maybe not.
The president is allowed to make successive recess appointments of the same or different individuals to a position. That means Bersin could get an extension during the 2011-2012 winter break and remain in office.
But, there's a catch. Bersin might have to work for free.
Under U.S. law, if the position to which the president makes a recess appointment falls vacant while the Senate is in session, the officeholder may not get paid until confirmed by the Senate. Although the law remains ambiguous, the Justice Department has interpreted the recess appointment provisions as 'prohibiting the payment of compensation to successive recess appointees,' according to Congress' public policy research arm. ' Eric Kulisch