V. Executive Appointments

Harvard Law Review, June 2012 | Go to article overview
Save to active project

V. Executive Appointments


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

V. Executive Appointments
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?