Adding Recess Appointments to the President's "Tool Chest" of Unilateral Powers

Article excerpt

In the struggle to control the federal bureaucracy, presidents have an overlooked but powerful tool: the recess appointment. By making recess appointments, presidents can fill vacancies without the advice and consent of the Senate. The authors delineate three conditions that define presidential unilateral powers and demonstrate how recess appointments fit within that paradigm. Presidents, the authors argue, should be more likely to make recess appointments to important policy-making positions, namely, major independent agencies. The authors compile a data set of every civilian nomination and recess appointment between 1987 and 2004. After controlling for other factors, the authors find strong support for their theory.

Keywords: recess appointments; presidential powers; Congress-presidential relations; unilateral presidency; separation of powers

On June 15, 2005, the Federal Elections Commission (FEC) published a press release announcing the resignation of Commissioner Bradley Smith. Smith's departure meant that four of the six sitting commissioners had either resigned or were serving expired terms. President George W. Bush long had opposed the Bipartisan Campaign Finance Reform Act (BCFRA), a key statute enforced by the FEC, and now the future of the act depended on how Bush's nominees would interpret and apply it.1 Legislators who had passed the law and the groups who had supported it all held their breath, waiting to see whom the president would nominate-if anyone.

Many supporters of the BCFRA expressed concern that President Bush would bypass the Senate and use his constitutional power to recess appoint the new FEC commissioners. The Washington Post suggested doing so would be a "gross misuse of the recess appointment power" ("No Recess" 2005). Writing to the president, the sponsors of the BCFRA requested that "you not use your recess appointment powers to fill the current vacancies at that agency" (McCain et al. 2005).2

But the president did exactly that. Rather than put his desired appointees, all of whom expressed some reservations about the BCFRA, through a grueling hearing and possible rejection in the Senate, the president waited for the Senate to recess. Then he appointed three candidates to the commission, using his constitutionally granted power to fill vacancies while the Senate is in recess without the advice and consent of the Senate. The impact of these recess appointments was profound and immediate. As the president likely anticipated, the new commissioners continued to interpret federal campaign finance law in a manner that made it nearly impossible to prove that groups engaged in illegal, coordinated campaign activity (Schor 2006).

This FEC episode highlights two important features of the president's recess appointment power. First, presidents can utilize recess appointments to bypass a Senate or senators that may be hostile to their nominees. second, recess appointments to major independent regulatory boards, like the FEC, can have real policy impact. Together, these features give the president a powerful tool to affect policy with limited interference from the Senate.

Recently, presidential use of recess appointments has increased.3 This increase in recess appointments coincides with a growth in contemporary work by presidency scholars, which demonstrates how presidents can and do use "unilateral powers" to make policy.4 We define a presidential power as "unilateral" if it has the following three attributes: first, the president manipulates ambiguities in the Constitution; second, the president must use the power first and alone, putting the legislature and courts in a position such that they must react to the president's action; and third, the president's action must affect policy (Howell 2003,2005; Moe and Howell 1999a, 1999b). Examples of unilateral powers identified by presidential scholars include executive orders (Mayer 1999, 2001; Howell 2003), presidential signing statements (Cooper 2002, 2005), and executive agreements (Moe and Howell 1999a). …