There is nothing on the books that President Obama can’t keep Alan Bersin at the head of Customs and Border Protection by making him a recess appointee for the second time, but it’s the longest of long shots, the hailest of Hail Marys, and the hottest poker to pull out of the fire.
The president appointed Bersin to be commissioner of Customs and Border Protection as a recess appointee in May 2010 after the Senate Finance Committee refused to confirm him. He can serve until the next adjournment of the Senate. That would be now, supposedly.
Senators left town on Dec. 17, but the Senate hasn’t adjourned. Its sessions are now pro forma, which means a skeleton crew of senators is keeping the doors open and the lights on. The main purpose is to prevent the president from making recess appointments.
This isn’t necessarily being used to block Bersin. Senators also have misgivings about the president’s nomination of former Ohio attorney general Richard Cordray to head the new Treasury Department Bureau of Consumer Financial Protection that was established in the Dodd-Frank banking reform law.
So IF the Senate adjourns, the president COULD reappoint Bersin if he wanted to. There is no word from Capitol Hill about when either chamber would adjourn. One former Hill staffer said it’s conceivable that the House could extend the current session into January.
Even so, it’s likely that the first session of the 112th Congress will adjourn, but the leaders will immediately convene the second session pro forma until everyone comes back to Washington after the holidays.
They may cross paths with Alan Bersin as he waits for a flight back home to San Diego.