Let's revise the Recess Appointments clause.

Great Debates
#1

Under Article II, section 2 of the Constitution, the President must obtain the “Advice and Consent” of the Senate for the appointment of all “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States”, except those inferior officers which Congress has designated by law not to require Senate confirmation. However, the Recess Appointments clause provides an exception:

This clause, part of the original Constitution, allows the President to appoint government officials on a (somewhat) temporary and emergency basis during congressional recesses. When it was written, its utility must have been self-evident given the slow pace of communication and travel in the eighteenth century and the long Congressional recesses during the country’s early years. However throughout American history, recess appointments have often been controversial, particularly when the appointment is made despite Senate refusal to confirm the nominee. (On the other hand, many recess appointments are non-controversial and lead to subsequent Senate confirmation.)

President Bush has used the Recess Appointments clause to install several people who had difficulty winning Senate confirmation, most notably John Bolton as U.N. Ambassador. More recently, during the Congress’s brief Easter Recess last month, President Bush made several recess appointments, including naming Sam Fox as Ambassador to Belgum. Fox’s confirmation in the Democrat-controlled had been stalled because of his prior involvement with the Swift Boat Veterans for Truth group opposing Sen. Kerry’s 2004 Presidential campaign. Similarly, President Clinton made a recess appointment of Bill Lan Lee as Assistant Attorney General for Civil Rights to avoid Senate opposition to his position on affirmative action.

Because recess appointments last to the end of the Congressional session, the appointments can last for up to almost two years, and any appointment a second term President makes in his last two years will effectively last through the end of his term.

Right now, there is little real effort ongoing to reform the recess appointment power. (In a related issue, under 28 U.S.C. 546, the Attorney General has the power to make temporary appointments of U.S. Attorneys, official otherwise requiring Senate confirmation. Prior to a 2006 amendment this statutory power was limited to a 120 day period, and both Houses of Congress have passed similar bills to reverse the 2006 amendment, which effectively permits the temporary appointments to last indefinitely.)

Lately, there has been speculation that if Attorney General Gonzalez resigns, President Bush may make a recess appointment of his successor to avoid Senate scrutiny. In such case, there might be enough Congressional outcry to limit the President’s recess appointment power by Constitutional amendment. The President is uninvolved with the amendment process, which requires two-thirds approval from each house of Congress and ratification by three-quarters of the States.

So, if we were to revise the Recess Appointments clause, what would we have it say? I would propose the following:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, except that persons who have been nominated to an office for 120 days or more without receiving Senate consent to their appointment, or who have received a prior Recess Appointment to that office, shall be ineligible for a Recess Appointment to such office for the duration of the Congress during which they have been nominated or received a Recess Appointment. The Commission of any such person receiving a Recess Appointment shall expire 120 days from the earlier of the date of such Recess Appointment or, if such person was previously nominated for the office for which he or she received such Recess Appointment, the date of such nomination.

This would effectively limit recess appointments to 120 days, and if the person had previously been nominated by the President and not confirmed for more than 120 days, could not be subject to a recess appointment. It would also prohibit successive recess appointments, and effectively prevent a full-length recess appointment just before the expiration of 120 days by limiting the total length of nomination plus recess appointment to 120 days. By limiting Recess Appointments to 120 days, this would allow the President to install government officials in on a temporary basis in an emergency, but would force prompt Senate approval or rejection of the officer.

#2

This administration has brought to light many of the loopholes that allow executive power to run wild. This is one of many loopholes that need to be plugged up.

#3

Why not just get rid of the recess appointment clause completely? If some position is so important it can’t wait for appointment until Congress is scheduled to resume, give the executive the right to call an emergency session. If congress persons don’t want to vote, don’t fly back. How hard is that?

#4

What about replacing it with:

“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions , but all such Commissions shall Expire when the Senate returns from Recess unless the Senate shall chuse to Extend them.”

#5

Or, simply add the phrase “The Senate may vote to revoke any recess appointment when it reconvenes.” This does give a tiny bit of acknowledgment to the concept of default continuity in government. The Senate must decide to override the President, rather than automatically considering the appointment as if it were new.

I don’t much respect George II, but I don’t see an advantage in reflexively back seat driving the President just because this one is a political hack.

Tris

Tris

#6

[hijack] Can we also limit the Interstate Commerce Clause at the same time to actual interstate commerce i.e. transactions that cross state lines[/hijack]

I disagree with the OP that such an appointment could last for 2 years. There are typically two sessions of Congress every year (note the Article uses that term and not “term”. In fact, I believe the Senate could declare a special session and at the end of which all recess appointments would expire. Therefore, I see no need to change it, however the ICC . . .

#7

The Congressional Research Service disagrees with you here… (In PDF)

http://www.senate.gov/reference/resources/pdf/RS21308.pdf

#8

This is one of the few proposals to amend the Constitution that I think has merit. Certainly there are going to be key vacancies that must be filled during a recess, but to allow recess appointments to serve for the remainder of the Congressional session is too much time. I don’t think the founders meant to establish a loophole for presidents to bypass the oversight role of the Senate and perhaps Bush has misused this loophole more than anyone else, and it does seem to be an oversight that can and should be corrected.

I like the notion that the Senate may vote to revoke a recess appointment within say 60 days of their return to session. So guys like Bolton would have been removed, but guys they would have approved anyway could stay.

#9

I don’t think that the Senate having to vote to overturn a recess appointment is a smart thing. For example, when John Bolton was recess appointed, do you really think Bill Frist would have scheduled a vote on whether or not to revoke the appointment? I doubt it. I’d prefer a stricter time limit on the duration of recess appointments – 180 days seems ample. Given that it can take time for the Senate to investigate the background of nominees, schedule a vote, go through debate, etc., so I don’t like the idea of having appointments expire immediately upon the Senate reconvening.

I’m wondering if it is reasonable to limit recess appointments to the Executive Branch only. On one hand, I think the appointment of judges due to the inability to get them approved by the Senate is pretty outrageous. On the other hand, should a tragedy strike a convention of Federal judges tomorrow, the work of the judiciary would not stop until the Senate had time to review and approve dozens, if not hundreds, of nominations.

#10

Wait…

So now our Glorious Leader doesn’t want each and every appointee to get one of those “Up or Down” votes I hear are so important?

I’m so confused.

-Joe

#11

I agree. Dump the clause completely. If the President can’t get his choice approved by Congress, then he’d bloody well better choose someone who will get approved. It’s called “working together to govern.”

#12

As it happens, Harry Reid has a plan to block Bush’s recess appointments.

#13

I think that the recess appointment power is useful in itself both because it gives the President the power to temporarily put people into necessary positions. It could be particularly useful in the event that there were some disasterous event which required the President to fill important positions when the Senate was unable to promptly meet – think nuclear strike or major terrorism. As long as one person in the Presidential succession is available to take the office, he or she would be able to fully reconstitute the government Constitutionally and legally.

I don’t think that calling on Senate action after a recess appointment would work. Many nominations are held up because of the Senate’s de facto requirement of a 60% supermajority where a filibuster is threatened. While the Republicans held the Senate majority, they considered the “nuclear option” of breaking the filibuster requirement for judicial nominees, but they (much to their relief now, I’m sure) pulled back after a compromise on some of the stalled nominees. Requiring a revocation of nomination would mean that there would effectively have to be a 60% against vote for a recess appointment.

Except in truly emergency situations, Congress doesn’t move immediately. The proposals to have the appointment end when the Senate returns to session doesn’t deal with the fact that there must be time for the Senate to approve or reject the recess appointee.

On the Reid proposal, recess appointments have been made in as little as a one day recess, so I don’t think that his suggestion will make any difference. (In fact, some have speculated that Gonzalez will resign and Bush will make a recess appointment during the short Memorial Day recess.)

#14

The flipside of the coin is, clearly from a constitutional and historical perspective Senate confirmation wasn’t intended to be used as a means for the party that controlled the Senate to effectively “pick the appointee” by refusing to confirm anyone whose politics they didn’t agree with. Nor was it designed to allow small groups of Senators to filibuster to stop an appointment when the majority of the Senate approved of it.

I’d be fine with the Constitutional Amendment proposed if we added a clause to it which would prevent Senators from filibustering the appointment process.

The Senate’s role in the confirmation process is to advise and consent it’s clearly not a legislative loophole designed to allow the Senate to pick and choose whomever they want for appointed offices. If the Senate was supposed to have that power, then appointment power would not have been given to the President in the first place. The confirmation system is in place to insure against things like cronyism, unfit persons, and et cetera. Not as a means for the party that does not control the White House to push a political agenda, or even worse, for the minority party in the Senate to filibuster appointments.

#15

Not to be too nitpicky, but technically speaking the only party that is by necessity involved in the amendment process are the States. An amendment can be proposed and ratified and become part of the Constitution without any approval from Congress (if 2/3 of the State demand a constitutional convention, Congress has to hold one, at such convention amendments can be proposed and ratified without a Congressman getting a single vote during the proposal or ratification process.)