V. Executive Appointments

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A. Introduction

The Appointments Clause, (1) which calls for presidential appointment of executive and judicial officials with the advice and consent of the Senate, exemplifies the system of checks and balances the Founders sought to achieve. (2) By assigning a single executive, the President, the authority to appoint all principal executive officers while simultaneously restraining this power by requiring Senate consent, the clause ensures that no branch goes unchecked. While this constitutional institutionalization of conflict over control is not unique to the appointments context, (3) appointments have become a major battleground between administrations and Congress over the last dozen years. (4) For most of the twentieth century, despite the rise of the administrative state, the appointments process functioned relatively smoothly; however, this stability has deteriorated dramatically since the turn of the century. The more polarized political environment and the greater concentration of power within administrative agencies have led to the development of new legal and political tools as the President and Congress each attempt to assert control over the appointments process, and ultimately over administrative agencies. As such, the area is ripe for scholarly exploration of the conflict through the prisms of separation of powers and the unitary executive theory.

The uniqueness of this conflict in the administrative state stems from the performance of a quasi-legislative role by the executive branch. (5) Thus, scholars have argued over whether the solution to this violation of separation of powers--arising from this handover of legislative power to the executive branch--is to allow intrusion by the legislative branch on the executive. (6) Congress's attempts to control the legislative powers it has ceded, by asserting greater authority over who is appointed to head the legislative, quasi-executive administrative agencies, reflect Meanwhile, presidents generally resist "attempts to insulate" (7) agencies from their control. As a result, the President's power has become a central battleground today. (8)

While battles over agency structure and control of agency officials are common, (9) the recent political and legal battles over presidential nominations and Senate confirmations have taken center stage. (10) Both Bush and Obama nominees have been held up by the Senate's refusal even to hold up-or-down votes on candidates. (11) Whereas in previous eras, the Senate typically rejected those nominees who were unqualified or otherwise patently defective, (12) it has become more common for the Senate to reject candidates based on consideration of ideological beliefs. (13) Thus, indisputably qualified nominees have been held up because the Senate--or even a minority of the Senate14--objected to their political views. (15) Finally, the Senate has stalled nominations in order to gain presidential concessions on policy or prevent the operation of the agencies themselves. (16)

In response, President Obama began using his recess appointments power to bypass the Senate. (17) To counteract the President's use of recess appointments, the Senate has been holding pro forma sessions de-signed to frustrate this power. (18) Recently, President Obama has responded by asserting that he has the constitutional power to make recess appointments despite such pro forma Senate sessions. (19)

This Part will discuss these and other developments in the law surrounding executive appointment. Section B chronicles the rise of the administrative state and summarizes the scholarly discussion of its effect on the authority of the executive and legislative branches. Section C discusses the changing dynamics of executive appointments in today's increasingly polarized political climate. Particularly, it uses individual case studies of the various skirmishes between the President and Congress over executive appointments to show how the increased polarization is interfering with the effective operation of government. …