Assessing Congressional Responses to Growing Presidential Powers: The Case of Recess Appointments

Article excerpt

In 2007, President George W. Bush indicated that he planned to fill vacancies on several key independent boards and commissions by using his presidential recess appointment power. Anyone receiving such an appointment could serve for up to two years and would not be subjected to the "advice and consent" of the Senate. Senate Republicans supported Bush's proposed usage of the recess appointment clause. Senator Judd Gregg (R-NH) described it as "a reasonable management tool" to overcome potential Democratic obstruction (Billings 2007). Democrats, however, were highly critical of Bush's current plan as well as his previous decisions to make recess appointments. Senate Majority Leader Harry Reid (D-NV) criticized the president's penchant for making "controversial recess appointments" (Billings 2007). Senator Chuck Schumer (D-NY) went further, characterizing Bush's past recess appointments as a "punch in the face" (Congressional Record, June 9, 2005). (1) In November, Reid announced plans to keep the Senate in perpetual session, denying Bush the opportunity to make any more recess appointments. (2)

The decision to block the president from making recess appointments was an unprecedented procedural maneuver that had far-reaching policy consequences. After Reid's announcement, large numbers of vacancies at several independent agencies and commissions could not be filled. These understaffed boards could not implement policy or enforce previously made decisions. Vacancies effectively shut down the Federal Election Commission and prevented it from ruling on many important issues such as the decision to approve public financing funds for Senator John McCain's (R-AZ) presidential campaign (Murray 2008). (3) The five-member National Labor Relations Board had only two members for over two years, calling into question the legitimacy of the decisions issued by the board. (4) The bipartisan Securities and Exchange Commission operated without any Democratic nominees for almost six months.

The unfilled vacancies on these boards have greatly altered the ideological makeup of these bodies. If Bush had been allowed to appoint members to boards without interference from the Senate, it seems clear that the boards would have produced rulings and policies more consistent with Bush's own views. Senate Democrats were able to craft independent boards, and therefore policy, more to their liking by preventing Bush from using his recess appointment power.

The Senate's decision to block the president from utilizing his recess appointment power poses an interesting question for scholars of inter-branch politics. The number of presidential recess appointments has increased steadily over the past three administrations with virtually no credible attempt by the Senate to curtail the practice. This behavior is consistent with political science literature that has pointed to the growing unilateral power of the president (Cooper 2002; Howell 2003; Mayer 2001; Moe and Howell 1999a, 1999b). These scholars argue that while the president alone can initiate the use of unilateral powers, members of Congress must act collectively to prevent the use of these powers. Because the costs of collective action by Congress can be prohibitively high, Congress is seldom able to check the growing power of the executive branch. In this article we seek to evaluate why Congress was able to achieve collective action and take aggressive action to counter the power of the executive.

We argue that for Congress to effectively check increasing presidential powers two conditions must exist. First, the president's use of a unilateral power must create high political costs for members of Congress. Second, these costs must be felt by a sufficiently large number of members to reach a threshold necessary to attain collective action. In most interbranch conflicts these conditions are not met and the president is able to garner ever-growing power relative to the Congress (Howell 2003). …


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