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Time for Congress to Stand Up to Bush on Recess Appointments

Article II, Section 2, Clause 3 of the Constitution says, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” [IMGCAP(1)]

This was not a controversial element of the Constitution; it was adopted by the Constitutional Convention without debate and without dissent. The reason it was not controversial was made clear by Alexander Hamilton in Federalist No. 67 — the power, he said, was “nothing more than a supplement … for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” Hamilton emphasized that the “general mode” of appointing officers meant joint action by the president and the Senate, but that there would be times when an appointment without delay was necessary when the Senate was away for an extended period.

Were I Associate Justice Antonin Scalia, an avowed originalist, looking at the plain language of the Constitution, the words of the authors of the document and those addressing the issue during the ratification debates, and the context for the framers at the time, my conclusion would be crystal clear. Back in those days Congress met only for brief periods and was adjourned for many months at a time. There were many occasions when important posts were vacant and nine months might pass before the Senate could convene to confirm the president’s nominees. No one at the time — no one — argued that the recess appointment power was to be used for other, broader purposes, especially in cases where the president was simply trying to make an end run around the Senate.

There was a consistent message from political actors early in the republic that this was intended to be a very limited and constrained power. In 1792, the first attorney general, Edmund Randolph, noted in response to a query from Thomas Jefferson that the Recess Appointments Clause must be “interpreted strictly” because it serves as “an exception to the general participation of the Senate.”

Presidents from early on occasionally used the recess appointment power in ways that caused great concern or consternation in Congress. And Congress over the years looked for ways to constrain the president, trying to make sure that the appointments only occurred during the real recess, between Congressional sessions, and not during faux recesses, brief periods when the Senate is away during a session.

In modern times, when Congress is in session virtually year-round, the original rationale for recess appointments has shriveled, leaving very few truly legitimate cases. But it is at just these times that the number of recess appointments has grown exponentially. They have grown in part as the number of Senate-confirmable presidential appointees has skyrocketed and in part because of the increase in partisanship and ideological tension between the branches. The dynamic is not all presidentially driven; in some cases the Senate has breached the normal confirmation process by refusing to take up nominees, including some who clearly would be confirmed if they were voted upon.

In his eight years in the White House, President Ronald Reagan made 243 recess appointments. President George H. W. Bush made 77 in his single term; President Bill Clinton made 140 in two terms. President George W. Bush has made 171 so far. Most of these were relatively minor, but some, including judges, were not.

The single most controversial appointee before the current President Bush’s tenure was Bill Lann Lee, who was made acting assistant attorney general for civil rights in 1997 by Clinton when the Senate Judiciary Committee made it clear that it would not approve his nomination, and then was given a recess appointment to the post in 2000. Lann Lee’s case was exceptional because it was clear that the Senate was going to act on his nomination and reject it. Other Clinton cases, like Ambassador to Switzerland James Hormel, would have been confirmed by the Senate but were set aside by hostile Senate leaders without any action for months on end.

So now we get to last week’s Bush appointees — Sam Fox as ambassador to Belgium, Susan Dudley to be head of the Office of Management and Budget’s Office of Information and Regulatory Affairs and Andrew Biggs to be deputy commissioner of the Social Security Administration. The action on Sam Fox is a lot like Lann Lee but also has its unique elements; the administration saw he was going to be rejected, withdrew the nomination an hour before the vote in the Senate Foreign Relations Committee, and then made him a recess appointee when the Senate went away for a matter of days over Easter and Passover. Under law, Fox could not be appointed and get payment for his services, so the president indicated that Fox, a wealthy man, would serve without pay. There are serious questions about the legality of that ploy.

As for Dudley, the appointment is even more shocking, since the Homeland Security and Governmental Affairs Committee had scheduled a hearing on her nomination and, under Chairman Joe Lieberman (ID-Conn.), probably would have approved the nomination. Biggs simply is an “up yours” gesture to the Senate Finance Committee, which did not like his antagonism toward the Social Security system.

The bottom line is that if these are not the first recess appointments that skirted the intent of the framers and distorted and abused the Constitution, they are among the most blatant. The practical reality, though, is that Congress cannot easily reverse them or change the behavior of a president who is willing and eager to expand his own power, ignore norms and comity between the branches and push things to another level. The Fox case might make it to the Supreme Court because of the technical questions surrounding voluntary service without pay, but probably not before Fox had served in the post for many months.

Why did the president make these appointments? Overall, he clearly chose to make a set of in-your-face gestures designed to show his base that the lame-duck president with a 35 percent approval rating is alive and well and will kick back against the enemy — i.e., the Democrats in Congress. That need was strong enough that the president was willing to alienate Lieberman and Senate Finance Chairman Max Baucus (D-Mont.) and along the way endanger immigration reform, Social Security reform and other issues. But there is a bigger danger. Every time a president abuses a power like this one, stretching the circumstances under which he will use recess appointments, it becomes a precedent for his successors, who will use his actions as a base point to stretch the power even further. The more the power is used with impunity, the more the core principles of the separation of powers are eroded.

So what is a Congress to do? The only answer is to use its own powers to make clear to the president that there is a cost, and a serious one, to such behavior. Of course, the Senate can block other presidential nominees, but that kind of hostage-taking or revenge killing would mean further damaging the already fragile nomination process and discouraging good people from service.

The more tempting course is to use the power of the purse. Mr. Fox may find he can serve in Belgium, but there are lots of ways to make his tour of duty unpleasant, including cutting off funds for his residence. And there are ways to make White House operations more difficult without cutting essential services. I hate to see this kind of interbranch warfare. But it is time to put some limits on a presidential abuse of power that has gone way too far.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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