A Short History of the Recess Appointment
President Obama’s recess appointment of Dr. Donald Berwick to be head of the Centers for Medicare & Medicaid Services escalates the abuse of the recess appointment power one step further.
The Constitution gives to the president the power to nominate and, “by and with the Advice and Consent of the Senate,” to appoint high government officials, such as ambassadors, judges of the Supreme Court, and department heads (Art. II, Sec. 2). This is a classic example of the checks and balances the Founding Fathers put into the Constitution to ensure that the power of each branch of government was limited by the powers of the other two branches.
But the Constitution also provided (same section) that, “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.”
In the 18th century, legislatures often met for only short periods and thus were out of session for months at a time. Alexander Hamilton explained the reason for the recess appointment power in The Federalist Papers (Number 67):
[A]s it would have been improper to oblige [the Senate] to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
That sounds, to non-lawyers at least, simple enough. If an office falls vacant while the Senate is not in session, the president can appoint someone to fill it who will serve until the end of the next session of the Senate unless confirmed during that session. And one might be forgiven for assuming that “the End of their next Session” means until the Senate adjourns once more. But that’s not so. The phrase has been interpreted to mean until the end of the following calendar year — even if a whole new Congress is sitting at that point and has been since January.
Presidents beginning with George Washington took advantage of the power to appoint people when the Senate was only in recess for a few days, a so-called “intrasession appointment.”
And courts (but not the Supreme Court) have ruled (Evans v. Stephens, 387 F.3d 1220 [11th Cir. 2004]) that there is enough semantic ambiguity in the word “happen” (reminiscent of “what the meaning of is is”) to allow presidents to use recess appointments to place someone in office even if the office became vacant while the Senate was in session or even if it had been vacant for a long period of time.
It was only after World War II that presidents began appointing people by this means to avoid Senate opposition and for tactical reasons. Eisenhower used a recess appointment to seat Justice William Brennan on the Supreme Court in 1956 because he thought he would benefit politically from appointing a northeastern Catholic before the election of that year. (Brennan was subsequently quickly confirmed by the Senate.) But Eisenhower made only three recess appointments in his eight years as president. President Obama made 15 recess appointments just this week. Part of the problem here is that the Senate confirmation process has become so beclotted with background checks and document searches that nominees often have to wait many months before a hearing is even called.
George W. Bush gave John Bolton a recess appointment as ambassador to the UN in 2005 when it became clear that Democrats would filibuster his nomination. That was a misuse of a constitutional power to avoid another misuse of a constitutional power. And if two wrongs don’t make a right, it is certainly understandable. But Obama used a recess appointment for Dr. Berwick not to avoid a filibuster but to avoid the Senate’s advice and consent power altogether. He blamed — surprise! — the Republicans for delaying the process, but that is a bald-face lie, as Republicans would be only too happy to have hearings on Dr. Berwick’s appointment in order to put the deeply unpopular ObamaCare back on Page One four months before the midterm elections.
President Obama’s action here shows his contempt for everything that stands in the way of his agenda, even the Constitution.
By the way, the advice and consent power of the Senate is the basis for one of the great American political novels, Advise and Consent by Alan Drury, first published in 1959, and which won the Pulitzer Prize for fiction the following year. A classic page-turner, if you haven’t read it or read it recently, it is the perfect book for summer vacation in this political year.