As high level federal vacancies continue to damage our government and economy, Barack Obama considers how best to push back against Senate confirmation obstruction. Several recess appointment options are available as the Senate stretches a five-week holiday break formally into its second session -- after a mandatory adjournment on January 3, 2012.
The strongest support for Obama's appointments lies in the U.S. Constitution -- its text and history. Article II, Section 2 charges the Executive alone with fulsome appointment responsibility, while explicitly limiting the Senate's role.
Framers' 1787 Design: Limited Senate Role
During the 1787 Constitutional Convention, delegates considered and flatly rejected several proposals to give the Senate significant appointment authority. Convention delegates, such as Alexander Hamilton and James Wilson, convinced the state representatives that the Senate would likely be subject to the influence of corrupting factions.
In his Federalist 76, Hamilton cautioned that any legislative assembly's "systematic spirit of cabal and intrigue" was incompatible with appointment authority. Hamilton specifically warned against the legislative bargain applied to appointment practice: "Give us the man we wish for this office, and you shall have the one you wish for that." Hamilton contrasted appointment by the president: "A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body."
At the 1787 Convention, James Wilson emphasized the correlation between presidential appointments and governance: "Good laws are of no effect without a good Executive; and there can be no good Executive without a responsible appointment of officers to execute." Wilson argued that allowing significant Senate authority would "destroy" responsible appointment practices.
The U.S. Supreme Court in Buckley v. Valeo (1976) formally recognized that the Constitution's history explicitly denies legislative appointment authority:
An interim version of the draft Constitution had vested in the Senate the authority to appoint...and the language of Art. II as finally adopted is a distinct change in this regard. We believe that it was a deliberate change made by the Framers with the intent to deny Congress any authority itself to appoint those who were 'Officers of the United States.'
Clause 2: Senate's Advisory Consent
It was with prescient suspicion of any legislative chamber's maladroit role in appointments that the Framers severely limited the Senate role. Article II, Section 2's clause 2 authorizes only that the Senate vote advisory-consent to (or advisory rejection of) the president's personnel choices:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.
With English constitutional antecedents, the term-of-art "by and with the Advice and Consent" gives the Senate power to advise only by voting 'yes' or 'no.' Contrary to conventional wisdom, the term "Advice" is not synonymous with senatorial selection "courtesy." Rather, the term "Advice" should be read as conjoined with its companion term "Consent" to mean that the Senate advises the president by and with a confirmation vote. (The modern Senate's role is thus fundamentally corrupted by procedures, holds, and filibusters which prevent up-or-down votes.)
Recess Appointments: No Restrictions
The president has "sole and independent" appointment authority; as Hamilton wrote, "[senators] cannot themselves choose - they can only ratify or reject the choice he may have made."
But equally important, if the Senate can not or will not act, the Framers' provided clause 3 of Article II, Section 2:
[T]he 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.
Constitutional Convention delegates agreed readily the federal government should always be fully staffed. Hamilton explained in Federalist 67 that the clause 3 instant commission option provides an "auxiliary method of appointment" required for vacancies "which it might be necessary for the public service to fill without delay."
The recess alternative's efficiencies and broad scope merit emphasis. The Framers could have limited the appointment's duration and function. Instead, recess commissions last up to 24 months (half a presidential term) and recessed officials have the same authority as confirmed officers. The Framers could have established a minimum time length of a Senate recess required to trigger the Executive power. Instead, the president may sign commissions during a Senate break of any length. Theodore Roosevelt appointed 160 officials during a 1903 adjournment that lasted only minutes. In Evans v. Stephens (11th Circuit 2004), the U.S. Court of Appeals ruled:
The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President's appointment power under the Recess Appointments Clause.
The appellate opinion, affirming George W. Bush's recess commission of a federal judge, confirms the broad scope of the alternative method:
Furthermore, what we understand to be the main purpose of the Recess Appointments clause -- to enable the President to fill vacancies to assure the proper functioning of our government -- supports reading both intrasession recesses and intersession recesses as within the correct scope of the clause.
Constitutional Command--Commission All Officers
Barack Obama deserves the strongest possible support as he fights to fill critical vacancies at the NLRB, CFPB, FDIC, State, Treasury, et al. As evidenced above, the U.S. Constitution provides a rock solid foundation. Moreover, Article II, Section 3 actually mandates that the president "shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States."
Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America School of Law.
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