RECESS APPOINTMENTS
Updated Sunday, February 03, 2008 08:10 PM
Blocking the President: Majority Leader Reid apparently had an understanding with Bush to make prompt nominations of Democrats to various agencies where the leadership is divided between the parties. Reid said he would move nominations along in the Senate - which he says he did with the AG Mukasey nomination. He further suggests that the President hasn't kept his part of this deal. His problem: How to handle the impending Thanksgiving recess of the Congress, and then the subsequent Christmas recess until early January?
Solution: Majority Leader Reid did not recess the Senate and has scheduled meetings of that body every 3rd or 4th day with two or more Senators present, and of course, they will immediately adjourn until the next meeting. In this situation, under Senate rules, the Senate will not be recessed in a format that would allow the President to make a recess appointment.
Behind this issue: Throughout this Bush administration there has been a political fight between the White House and the Senate - even during the GOP control of the Senate. The GOP has pitched the policy that the President has a superior power in these things - directly in opposition to the Constitution of the United States and in particular to the idea of the Advice and Consent required on many Executive Appointments. There are a number of calculated strategies on the part of the White House based on the Bush Administration frustrations with the shared power philosophies of the United States through its entire Constitutional history. These are raw power moves to eliminate Senate participation in the appointment process. The current struggle in reality is an application of the "checks and balances" doctrines built into the United States government. 11 18 07
The Constitution of the United States provides for Recess Appointments by the President at times when the Senate is away from its public business - in Recess.
Historical perspective about the Constitution reminds us that the young United States was a rural nation with a Congress that met only briefly with long recesses in each Session. That led to the practical problem of vacant appointments for long periods when there was no opportunity for confirmation by the Senate.
The President has the authority under the Constitution to fill a vacant position that requires Senate confirmation without submitting the nominee to the Senate and waiting for the Senate to confirm or reject. That nominee holds the position with a recess appointment until the end of the Senate session in which he was appointed - without confirmation. Such a nominee can continue in that position after the next Senate Session begins, but must serve without direct or indirect compensation. Until that point - the nominee has all the rights, privileges - and compensation - of a confirmed appointment.
The Recess Appointment has a huge potential for controversy. To be fair, it is not a widely used process, and much of the time for the purpose it was intended to serve. Controversy develops - raging controversy develops - when a President makes an appointment fully intending to avoid Senate inspection and confirmation of the nominee. The Senate often is angry - particularly in situations where the nominee has already been rejected by the Senate or somehow been prevented from taking office during the Senate considerations. Interest groups on both sides of the appointment are quick to be heard in these situations.
Presidents have been generally consistent in using the Recess Appointments over the life of the United States. While many have been controversial - may have been routine. Even so - the controversy involved has been an issue throughout the experience of the Presidency - and there has been extensive litigation about how it is supposed to be used. One issue is what constitutes recess - does a weekend off for the Senate constitute a Recess for the purposes of the Constitutional provision - answer seems to be "yes.". .
Recess Appointments as a Political Issue: Recess appointments rarely become much of a national political issue. The President's recess appointments of John Bolton to the UN Ambassadorship and now the Fox recess appointment to Belgium have given Democrats a powerful corruption issue. Combined with the United States Attorney issues, political appointments are becoming a disaster for the Administration. What is genuinely peculiar about this situations is that the President has an absolute legal right to deal with the appointments as he has, but has developed a nearly congenital capacity to mismanage both practices. His political opponents in both parties and in the public are using both situations to weaken the White House on Iraq and other subjects. This is also triggering the movement of power within the Republican Party back to the conservative politicos and away from the White House. The Lame Duck Presidency is moving to a Wounded and Dead-Duck Presidents quickly. 9 10 07
- John
Isaacson Says: (blog
comment)
April 5th, 2007 at 4:15 pmWe deal with the Recess Appointments issue almost daily, and particularly agree with the assessment that Bush, et al, is essentially an anti-constitutional Presidency. Although he has not used the recess appointment much more than many Presidents, almost every one was offensive to the ideas of Constitutional, lawful government.
There is an important place for recess appointments in emergency situations and the process makes constitutional sense in many hypothetical settings - a few of which have actually happened over the years.
In dealing with Presidential Appointments on a daily basis, we are never surprised at how little attention the Bush government gives the People instead of private, usually economic interests. The Baroody nomination to Consumer Safety is almost certainly going to be another slap in the face of the confirmation process, not to speak of a brutalizing gut punch to the safety of consumers.
John Isaacson
Director@Presidential-Appointments.org
The President has made three additional recess appointments, these made just before the Congress returned from recess this last week. Fox, a major political contributor from Missouri, was named Ambassador to Belgium. Senator Kerry of Massachusetts placed a hold on his nomination in the Senate confirmation procedure because Fox led the "Swift Boat" attacks on Kerry during the 2004 Presidential Elections. Two other recess appointments were made, both ones held up by the Senate confirmation procedure at the time of the appointments. These appointments end when the 2009 new Congress convenes and the President leaves office. Fox is offering to work for free - a matter which some Senators believe may be illegal, i.e., recess appointments must take pay for their work on the first appointment. Another constant issue is the impact of the confirmation on nominee qualifications and to what extent that improves or examines the quality of the appointment. September 8 2007
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