Bush’S Recess Appointments: Are They Constitutional?

A Congressional Research Service report gives us a few things to think about.Bush’s Recess Appointments: Are They Constitutional?By Cliff Montgomery – July 30th, 2007Below are quotes from a Congressional Research Service report updated on June 14th, 2007, regarding the recess appointments of George W. Bush. It is an important matter, as some critics have charged that recess appointments may temporarily allow a more ideologically-minded president to bypass the balance of powers inherent in the Constitution.We quote from the report below:“Under the Constitution, the President and the Senate share the power to make appointments to the highest-level politically appointed positions in the federal government.”The Constitution also empowers the President unilaterally to make a temporary appointment to such a position if it is vacant and the Senate is in recess.”Such an appointment, termed a recess appointment, expires at the end of the following session of the Senate.”The records of debate at the Constitutional Convention and the Federalist Papers provide little evidence of the framers’ intentions in the recess appointment clause.”Opinions by later Attorneys General, however, suggested that the purpose of the clause was to allow the President to maintain the continuity of administrative government through the temporary filling of offices during periods when the Senate was not in session, at which time hisnominees could not be considered or confirmed.”This interpretation is bolstered by the fact that both Houses of Congress had relatively short sessions and long recesses during the early years of the Republic. In fact, until the beginning of the 20th century, the Senate was, on average, in session less than half the year.”This report identifies recess appointments made by President George W. Bush from the time he took office on January 20, 2001, through June 4, 2007, the end of the 2007 Memorial Day recess.”As of June 4, 2007, President Bush had made 171 recess appointments. President William J. Clinton, in comparison, made a total of 139 recess appointments during the course of his presidency. Of President Bush’s 171 recess appointments, 105 were to full-time positions, and the remaining 66 were to part-time positions.”In general, the top leadership positions in the federal government are full-time positions to which appointments are made through the advice and consent process. For example, among the full-time offices to which President Bush made recess appointments, five were deputy secretary positions and two were federal appeals court judgeships.”Part-time positions can also be vested with statutory policy-making authority that can have broad impact. The members of the Defense Base Closure and Realignment Commission, who received recess appointments from President Bush, could be considered among the positions in this category.”The text of the Constitution states that the President has the authority to exercise this power during ‘the Recess of the Senate.'”The precise meaning of that phrase has been a matter of some debate related to two types of congressional recess. The Twentieth Amendment to the Constitution provides that Congress will meet annually on January 3, ‘unless they shall by law appoint a different day.'”In recent decades, each Congress has consisted of two 9-12 month sessions separated by an intersession recess. The period between the second session of one Congress and the first sessionof the following Congress is also referred to as an intersession recess.[But] within each of the sessions, Congress [also] has typically adjourned for 5-11 intra-session recesses of four days or longer, usually in conjunction with national holidays.”Some scholars have asserted that recess appointments may be made only during intersession recesses. Others take a broader view of the meaning of ‘Recess’ as used in the recess appointments clause and assert that the President may also make recess appointments during intra-session recesses.”Notwithstanding the ongoing discourse in this area, recent Presidents have made recess appointments during both kinds of recesses. Of the 171 recess appointments by President Bush, as of June 4, 2007, 30 were intersession recess appointments and 141 were intra-session recessappointments.”In 165 of the 171 cases in which President Bush made a recess appointment, by June 4, 2007, the individuals were also nominated to the position to which they had been appointed.”In 162 of these 165 cases, the individuals being appointed had previously been nominated to the position.”In three additional cases, the individuals were first nominated to the position after the recess appointment.”Of the 165 cases in which the President submitted a nomination for the recess appointee, as of June 4, 2007, 91 had resulted in confirmation, 27 were pending in the Senate, and the remaining 47 had failed to be confirmed. In 14 of these 47 cases, the President withdrew the nominations of the appointees. In the remaining 33 cases, the nominations were returned to the President.”Like what you’re reading so far? 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