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Bill Lucey

Bill Lucey

Posted: February 14, 2010 09:07 PM

Examining the "Recess of the Senate''

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It's only fitting that as we celebrate President's Day on Monday, President Obama will make use of -- or at least is threatening to make use of -- a little known executive power stipulated in Article II Section II of the U.S. Constitution, which gives the president the authority to appoint vacancies when the Senate is in recess.

Upset that many of his high-level nominees have been stalled, the president made it clear recently he will be use his recess appointment powers unless the Senate moves quickly to confirm his nominees.

Since his warning, Republicans have freed up 29 nominees to receive votes in the Senate; but it still leaves dozens of high-level appointments still on hold.

President Obama in a rare press conference on Thursday, said "I would exercise my authority to fill critically-needed positions in the federal government temporarily through the use of recess appointments. This is a rare but not unprecedented step that many other presidents have taken.''

President Obama is right, the recess appointment power is not unprecedented, but it's hardly rare.

In fact, presidents as far back as Washington have used their recess powers; most have gone unchallenged, while others have sparked controversy. Presidents Jackson, Taylor and Lincoln, Senate records show, made hundreds of recess appointments during their time in office.

According to the Congressional Research Service, Mr. Obama's predecessor, George W. Bush made 171 recess appointments (99 of those were full-time positions); while William J. Clinton made 139 appointments (95 were full-time).

Until the last 40 years, presidents took great liberty with recess appointments. The first five U.S. presidents appointed 31 members to the judiciary, including five to the Supreme Court.

The appointments of justice Earl Warren, William J. Brennan, Jr., and Potter Stewart to the Supreme Court by President Eisenhower all came by the way of recess appointments.

But it was this abuse of executive power that triggered some revisions. In 1960, Democratic Senator Phillip Hart from Michigan introduced S. Res. 334 , which discouraged recess appointments for Supreme Court members on the grounds that it wasn't in the best interest of the court , the nominees involved or the people of the United States; and accordingly should be avoided except under "unusual and urgent circumstances.''

Since this resolution was enacted, no Supreme Court justice has been nominated through a recess appointment.

George H. W. Bush set off an inferno when he appointed Thomas Ashley to the U.S. Postal Service Board on January 9, 1993. The appointment came at a time when Bush was a lame-duck president and was bumping heads with the Board of Governors' vote by a 6-5 margin to pursue a lawsuit over postal rates.

Mr. Bush initially threatened to dismiss the governors, who voted to pursue the suit, but the U.S. District Court for the District of Columbia granted an injunction, prohibiting such action.

President Bush then replaced Crocker Nevin, a board member with Thomas Ludlow, a personal friend of the president, when the Senate was in recess. Not until July 25th of 1993, after Mr. Nevin filed a lawsuit, did the Federal Court reverse the decision, ruling it was an improper appointment, which cleared the way for President Clinton to nominate his own member to the U.S. Postal Service.

Another storm gathered over the 105th Congress when President Clinton appointed James Hormel, a gay rights activist, and a large contributor to the Democratic Party, ambassador to Luxembourg without Senate confirmation.

A conservative lawmaker, Senator James M. Inhofe of Oklahoma, accused Mr. Clinton of a ''flagrant abuse of the recess appointment power'' and threatened to uphold other appointments unless the president agreed to curb such powers.

Inhofe and Clinton locked horns again just before the president left office in 2000, when Clinton named Roger Gregory to the United States Court of Appeals for the Fourth Circuit, based in Richmond, Va.

Inhofe charged that it was ''outrageously inappropriate for any president to fill a federal judgeship through a recess appointment in a deliberate effort to bypass the Senate. Clinton defended his appointment in naming Gregory, the first black to the appeals court, on the grounds that the Republican controlled Senate continuously frustrated his plans to name an African America to the court.

In 2007, just before the Thanksgiving recess, Senate Majority Leader Harry Reid (D-Nevada) held abbreviated sessions (pro forma sessions) during the recess, just to prevent President Bush from making contentious executive branch appointments as he has done in past, such as when naming John R. Bolton as ambassador to the United Nations, and Sam Fox as ambassador to Belgium. Fox, to the anger of Democrats, was a contributor to the Swift Boat Veterans for Truth, a group that questioned John Kerry's military service during the Vietnam War.

The Bush White House had made it known to Senator Reid and others that it was unwilling to confirm nominations made by Democrats to the Federal Communications Commission, the Federal Energy Regulatory Commission and the Nuclear Regulatory Commission.

The first president to have his recess appointment challenged was when Theodore Roosevelt on December 7, 1903 made over 160 appointments, mostly members of the military during an intercession recess of less than one day. Over a year later, the 1905 Senate Judiciary Committee Report was issued, which strongly rejected TR's action.

Although recess appointments has resulted in controversy, more often than not, recess appointments without the advice and consent of the Senate are more systematic than ideological.

According to Ryan J. Owens, Assistant Professor of Government at Harvard University and one of the authors of an article published in the Political Research Quarterly (Volume 60 Number 4, December 2007) "Adding Recess Appointments to the President's "Tool Chest of Unilateral Power'' suggests presidents "are more likely to make recess appointments to major independent agencies (so as to influence policy emanating from these entities), when their nominees have experienced confirmation delay, and when the President knows that the other party is soon to occupy the White House.''

A recess appointment expires at the end of the Senate's next session or when the recess appointee or someone else is nominated, confirmed, or permanently appointed; meaning, a recess appointment can last as long as two years. If Mr. Obama made any recess appointments, in other words, they would remain valid until the 111th Congress ends in January, 2011.

Leaders of major labor unions are encouraging President Obama to use his recess power to appoint Craig Becker to the National Labor Relations Board as a way to strengthen their legislative agenda before the midterm elections on critical issues dealing with wage abuses and health and safety concerns.

The Senate previously blocked the appointment of Becker, an Illinois labor attorney, falling eight votes short of the required 60 to proceed on his nomination.


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