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.