Avoiding Advice and Consent: Recess Appointments and Presidential Power

Article excerpt

In July 2004, President Bush announced his intention to make twenty appointments during the congressional recess, including a new chairman of the Federal Trade Commission (FTC). For FTC chairman, Bush appointed Deborah Majoras. Majoras's nomination had been blocked in the Senate by Senator Ron Wyden, who claimed there was no evidence she would change FTC policies that benefit oil companies and hurt consumers. Wyden stated that he hoped "this undemocratic process for naming a new chair won't result in consumers being hammered with high gas prices again and again." This remark illustrates the controversy surrounding recess appointments: the president's power to nominate is checked by the Senate's power to reject confirmation, but recess appointments provide a constitutionally sanctioned means to circumvent the Senate's check on the executive.

One of the foundations of presidential power is the president's appointment power. Scholars of the institutional presidency have argued that political appointees are crucial in the ability of the president to achieve his goals. Through his appointment power, the president is in a position to create a corps of agents who will carry out presidential policy (Krause and Cohen 2000). Although the president nominates "by and with the Advice and Consent of the Senate," he also has the 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." Thus, the recess appointments clause provides the president the capacity to take unilateral action. (1)

Even though the recess clause stems from days when senators could be out of touch for months as they traveled to and from their states on horseback and, consequently, were not in session to give advice and consent to presidential nominations, recently it has been used--abused, critics contend--to install problematic nominees. In fact, senators and scholars argue that the White House is increasingly disregarding Congress' role in the confirmation process (Carrier 1994; Victor 1998). According to Senator Fred Thompson, "we have a government that is more and more operating without the Constitution ... The executive branch is not fulfilling its responsibilities to give Congress the opportunity to exercise its advice and consent powers. We've got to do something about it" (Victor 1998). This recess appointment power is important because, as scholars have noted, "[i]f the president were free to make recess appointments s/he could end-run an intransigent Senate by filling vacancies during recesses with hand-picked appointees, who, presumably, would do his/her bidding" (Nokken and Sala 2000, 104). In addition, scholars argue that recess appointments enable the president to temporarily install an appointee who probably would not be confirmed by the Senate with the hope that, by the next session, opposition will have diminished (Hogue 2005). Although the recess appointments clause is constitutionally specified, the definition of a recess is ambiguous and arguably has been exploited. (2)

Recent presidents have used the recess appointments clause fairly often. During his two terms in office, President Reagan made 240 recess appointments, of which 116 were to full-time positions. President George H. W. Bush made 77 recess appointments during his term of office (18 were full-time positions) and President Bill Clinton made 140 recess appointments during his eight years in office, 95 to full-time positions. During his first term in office, President George W. Bush made 110 recess appointments (Hogue 2005). Thus, the recess appointments clause provides a way for presidents to act on their own without relying on other institutions or actors, a unilateral tool similar to that of executive orders.

Scholars have noted that the strategy of unilateral action has grown increasingly more central to the modern presidency (Moe and Howell 1999). …