Recess Appointments

The Nature of Recess Appointments:

Recess appointments have regularly caused controversy between the President and the United States Senate - since the beginning of the Nation.

The "Recess Appointment" controversy has excited anger since the Constitution was ratified more than 220 years ago. The practical impact has always been to dilute the power of the United States Senate to totally block Presidential Appointments. This is an important part of the Checks and Balances built into our government. The President could operate the government totally on recess appointments if necessary, although it would surely be politically unpopular. Both parties use the Advice and Consent power to slow down, or prevent Presidential Appointments. Needless to say it irritates a sitting President, but is an important check on his powers. Opposing confirmation has prevented many bad appointments - including the two TSA nominations which both turned out to have had improper conduct in prior relationships with the government.

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The President Threatens Recess Appointments

Senator Hatch, (R-UT) has warned the President not to use "recess appointment" during current recess to appoint a member of National Labor Relations Board. George Bush used that route to appoint five pro-business lawyers to NLRB during his term. Does "Good for the Goose, Good for the Gander" apply here? Obama is likely to make this NLRB appointment in a few days. 01-11-10 See Recess Appointments.

President Obama has had it with Senator's holds. He called them "obstructionist" and "theater" when meeting the press on Tuesday. He said pass them or it is time for him to make Recess Appointments when the Senate retires at the end of the week for the President's Day recess. See Details on Recess Appointments here. 02-10-10

The United States Senate formally adjourned today after months of proforma sessions during recess periods to block the Bush administration from making recess appointments. The dispute between the Senate and the President became absolute during this period and no recess appointments were successfully made by the President. See this Washington Post story 1-2-09.

Blocking the President: Majority Leader Reid apparently had an understanding with Bush to make prompt nominations of Democrats to various agencies where the leadership is divided between the parties. Reid said he would move nominations along in the Senate - which he says he did with the AG Mukasey nomination. He further suggests that the President hasn't kept his part of this deal. His problem: How to handle the impending Thanksgiving recess of the Congress, and then the subsequent Christmas recess until early January?

Solution: Majority Leader Reid did not recess the Senate and has scheduled meetings of that body every 3rd or 4th day with two or more Senators present, and of course, they will immediately adjourn until the next meeting. In this situation, under Senate rules, the Senate will not be recessed in a format that would allow the President to make a recess appointment.

Behind this issue: Throughout this Bush administration there has been a political fight between the White House and the Senate - even during the GOP control of the Senate. The GOP has pitched the policy that the President has a superior power in these things - directly in opposition to the Constitution of the United States and in particular to the idea of the Advice and Consent required on many Executive Appointments. There are a number of calculated strategies on the part of the White House based on the Bush Administration frustrations with the shared power philosophies of the United States through its entire Constitutional history. These are raw power moves to eliminate Senate participation in the appointment process. The current struggle in reality is an application of the "checks and balances" doctrines built into the United States government. 11 18 07

The Constitution of the United States provides for Recess Appointments by the President at times when the Senate is away from its public business - in Recess.

Historical perspective about the Constitution reminds us that the young United States was a rural nation with a Congress that met only briefly with long recesses in each Session. That led to the practical problem of vacant appointments for long periods when there was no opportunity for confirmation by the Senate.

The President has the authority under the Constitution to fill a vacant position that requires Senate confirmation without submitting the nominee to the Senate and waiting for the Senate to confirm or reject. That nominee holds the position with a recess appointment until the end of the Senate session in which he was appointed - without confirmation. Such a nominee can continue in that position after the next Senate Session begins, but must serve without direct or indirect compensation. Until that point - the nominee has all the rights, privileges - and compensation - of a confirmed appointment.

The Recess Appointment has a huge potential for controversy. To be fair, it is not a widely used process, and much of the time for the purpose it was intended to serve. Controversy develops - raging controversy develops - when a President makes an appointment fully intending to avoid Senate inspection and confirmation of the nominee. The Senate often is angry - particularly in situations where the nominee has already been rejected by the Senate or somehow been prevented from taking office during the Senate considerations. Interest groups on both sides of the appointment are quick to be heard in these situations.

Presidents have been generally consistent in using the Recess Appointments over the life of the United States. While many have been controversial - may have been routine. Even so - the controversy involved has been an issue throughout the experience of the Presidency - and there has been extensive litigation about how it is supposed to be used. One issue is what constitutes recess - does a weekend off for the Senate constitute a Recess for the purposes of the Constitutional provision - answer seems to be "yes."

President Makes Recess Appointments

WASHINGTON –After facing months of Republican obstruction to administration nominees, President Obama announced his intent to recess appoint fifteen nominees to fill critical administration posts that have been left vacant, including key positions on the economic team and on boards that have been left with vacancies for months.

“The United States Senate has the responsibility to approve or disapprove of my nominees. But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis,” said President Barack Obama. “Most of the men and women whose appointments I am announcing today were approved by Senate committees months ago, yet still await a vote of the Senate. At a time of economic emergency, two top appointees to the Department of Treasury have been held up for nearly six months. I simply cannot allow partisan politics to stand in the way of the basic functioning of government.”

Following their appointment, these nominees will remain in the Senate for confirmation.

Obama Administration appointees have faced an unprecedented level of obstruction in the Senate.

President Obama currently has a total of 217 nominees pending before the Senate. These nominees have been pending for an average of 101 days, including 34 nominees pending for more than 6 months.
The 15 nominees President Obama intends to recess appoint have been pending for an average of 214 days or 7 months for a total of 3204 days or almost 9 years.
President Bush had made 15 recess appointments by this point in his presidency, but he was not facing the same level of obstruction. At this time in 2002, President Bush had only 5 nominees pending on the floor. By contrast, President Obama has 77 nominees currently pending on the floor, 58 of whom have been waiting for over two weeks and 44 of those have been waiting more than a month.

(The President then made a number of recess appointments.)

Recess Appointments as a Political Issue.

Recess Appointments are all political - and usually angry.

Recess Appointments as a Political Issue: Recess appointments rarely become much of a national political issue. The President's recess appointments of John Bolton to the UN Ambassadorship and now the Fox recess appointment to Belgium have given Democrats a powerful corruption issue. Combined with the United States Attorney issues, political appointments are becoming a disaster for the Administration. What is genuinely peculiar about this situations is that the President has an absolute legal right to deal with the appointments as he has, but has developed a nearly congenital capacity to mismanage both practices. His political opponents in both parties and in the public are using both situations to weaken the White House on Iraq and other subjects. This is also triggering the movement of power within the Republican Party back to the conservative politicos and away from the White House. The Lame Duck Presidency is moving to a Wounded and Dead-Duck Presidents quickly. 9 10 07

John Isaacson Says: (Blog comment)
April 5th, 2007 at 4:15 pm
We deal with the Recess Appointments issue almost daily, and particularly agree with the assessment that Bush, et al, is essentially an anti-constitutional Presidency. Although he has not used the recess appointment much more than many Presidents, almost every one was offensive to the ideas of Constitutional, lawful government.

There is an important place for recess appointments in emergency situations and the process makes constitutional sense in many hypothetical settings - a few of which have actually happened over the years.

In dealing with Presidential Appointments on a daily basis, we are never surprised at how little attention the Bush government gives the People instead of private, usually economic interests. The Baroody nomination to Consumer Safety is almost certainly going to be another slap in the face of the confirmation process, not to speak of a brutalizing gut punch to the safety of consumers.

John Isaacson
Director@Presidential-Appointments.org
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The President has made three additional recess appointments, these made just before the Congress returned from recess this last week. Fox, a major political contributor from Missouri, was named Ambassador to Belgium. Senator Kerry of Massachusetts placed a hold on his nomination in the Senate confirmation procedure because Fox led the "Swift Boat" attacks on Kerry during the 2004 Presidential Elections. Two other recess appointments were made, both ones held up by the Senate confirmation procedure at the time of the appointments. These appointments end when the 2009 new Congress convenes and the President leaves office. Fox is offering to work for free - a matter which some Senators believe may be illegal, i.e., recess appointments must take pay for their work on the first appointment. Another constant issue is the impact of the confirmation on nominee qualifications and to what extent that improves or examines the quality of the appointment. September 8 2007