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Ornstein vs. Ornstein on Presidential Recess Appointments

On the New York Times op-ed page, Norman J. Ornstein argues the pending challenge to President Obama’s recess appointments “represents the biggest threat to presidential power in decades”–something he views with alarm. He concedes the recess power was not intended to deal with political disputes between the president and the Senate, but only to allow presidents to appoint officials when it was impractical to summon the Senate back to Washington to confirm them. But he views the recess appointment power as “a modest safety valve to ameliorate the worst abuses of Senate power” when the opposition party controls the Senate.

Seven years ago, with a different president and a different opposition party, Ornstein viewed something else with alarm–presidential recess appointments.

President Bush gave recess appointments to Sam Fox as ambassador to Belgium, Susan Dudley to the Office of Management and Budget, and Andrew Biggs as deputy commissioner of the Social Security Administration. Ornstein viewed the Biggs appointment “an ‘up yours’ gesture to the Senate Finance Committee”; the Dudley appointment “shocking,” because she “probably” would have been approved under normal procedures; and the Fox appointment as one made during the Senate’s Easter and Passover break. Here was his analysis, in an article entitled “Time for Congress to Stand Up to Bush on Recess Appointments”:

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. …

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. … 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 bottom line is that if these [Bush appointments] 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. … 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. … [I]t is time to put some limits on a presidential abuse of power that has gone way too far.

It would take a constitutional law instructor from Chicago to think up a way to make “in your face” recess appointments in a manner so abusive they dwarfed what Bush did–and perhaps only the New York Times to publish an op-ed suggesting the Supreme Court write an opinion “leaving intact the accepted practices,” written by someone who seven years ago not only didn’t accept them, but realized the plain language of the Constitution doesn’t either.  


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