According to Congressional Reference Service (CRS) analyst Henry B. Hogue, intrasession appointments (during a recess within a session) “were unusual…prior to the 1940s.” However, Presidents since George Washington have used recess appointments for political purposes, as outlined by T.J. Halstead, also of CRS. So the controversy provoked by President George W. Bush’s April 4, 2007 appointment of Susan Dudley, Andrew Biggs and Sam Fox, while the Senate was adjourned for only seven working days (March 30 – April 9, 2007), is nothing new.

For example, on January 8, 1993, George H. W. Bush appointed, during a twelve-day recess, less than two weeks before he left office, Thomas Ludlow Ashley to be a Governor of the U.S. Postal Service, succeeding Crocker Nevin. [See Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993). “Determination of whether there was a vacancy on the USPS Board of Governors which the President could fill by recess appointment.”]

A related document is Item 37 in the Congressional Record for July 1, 1993 that includes “The Senate’s Constitutional Authority to Advise and Consent to the Appointment of Federal Officers.” George Mitchell’s (D-ME) speech in favor of filing an amicus brief includes for the record a copy of the brief, which was not filed, due to Republican opposition.

Swan v. Clinton (1996) in a footnote states, “the meaning of ‘vacancy’ in the recess appointments clause context is unclear. Compare Wilkinson, 865 F. Supp. at 902 (end of term of member of LSC Board does not create a vacancy) and Mackie v. Clinton, 827 F. Supp. 56, 57-58 (D.D.C. 1993) (end of term of member of Post Office’s Board of Governors does not create a vacancy), vacated as moot, 1994 WL 163761 (D.C. Cir. Mar. 9, 1994) with McCalpin v. Dana, No. 82-542, (D.D.C. Oct. 5, 1982) (end of term of member of LSC Board creates a vacancy), vacated as moot sub nom. McCalpin v. Durant, 766 F.2d 535 (D.C. Cir. 1985), and Staebler, 464 F. Supp. at 589-90 (end of the term of member of the Federal Election Commission creates a vacancy).”

Law Professor Michael A. Carrier used the case as a springboard for discussion in 1994, writing [note: this link leads to a document whose text is available via JSTOR through participating libraries and institutions], “Even though the Senate as a whole cannot act on a nomination during a recess, committee consideration of presidential nominees presents the possibility that the advice-and-consent process may commence. In conjunction with short intrasession recesses and the ability to receive messages from the President, Senate committee activity during recesses thus minimizes the possibility of governmental paralysis resulting from unfilled vacancies.”

Carrier added that, “statutory alternatives such as succession and holdover provisions keep the government running smoothly even in the event of such vacancies. Because these changes demonstrate how limited the original purposes of the clause have become in today’s political environment, courts should confine presidential power to make recess appointments to the type of recess that most consistently reflects the Framers’ understanding of how presidents would use the power, the intersession recess.”

Law Professor Michael B. Rappaport concurred with Carrier ten years later. The Constitution originally expected the President to make an advice and consent appointment if an office fell vacant while the Senate is in session. Rappaport argued that recess appointments are allowed only during intersession recesses; the current interpretation allows appointments during recesses too brief to justify bypassing the Senate. In contrast, during the early days of our country’s government, recesses lasted between 6 and 9 months and would have otherwise left important offices unfilled for long periods.

In January 2007 Law Professor Brian C. Kalt, in a Northwestern University Law Review Colloquy, Keeping Recess Appointments in Their Place, stated that since “comparatively few vacancies arise during recesses, and most of those vacancies could wait to be filled until the Senate returns,” the original purpose of the clause is “largely moot.” He says the clause allows the President to use it like “a bludgeon rather than a bandage,” when the President has “nominated someone who will not get confirmed, but also will not get an up-or-down vote,” and that recent Presidents have on occasion used it in just that way. He suggests that “If the Senate has the votes to take an affirmative step, it should take the simpler and less problematic step of voting on the nominee when it can. If the Senate does not like a nominee, it can say so by rejecting him.”

George W. Bush supported up-or-down votes when he had a majority in Congress. His Remarks on the Recess Appointment of John Bolton as Ambassador to the United Nations August 1, 2005 in The Weekly Compilation of Presidential Documents complained about waiting nearly five months. “The United States Senate held thorough confirmation hearings, and a majority of United States Senators agree that he is the right man for the job. Yet because of partisan delaying tactics by a handful of Senators, John was unfairly denied the up-or-down vote that he deserves.”

Another example is the case of Sam Fox whose nomination as Ambassador to Belgium was withdrawn by President Bush on March 28, 2007 “less than an hour before the Senate Foreign Relations Committee gathered to vote” according to an article by AP’s Sam Hananel. President Bush faced a newly-elected majority of Democrats in the Senate which would have voted the measure down in committee before it reached the floor. Even if the measure had come up for a vote, it is hard to know if there were enough Republican Senators to vote against invoking cloture.

Chris Dodd (D-CT) issued a statement, which said in part: “It is outrageous that the President has sought to stealthily appoint Sam Fox to the position of ambassador to Belgium when the President formally requested that the Fox nomination be withdrawn from the Senate because it was facing certain defeat in the Foreign Relations Committee last week. I seriously question the legality of the President’s use of the recess appointment authority in this instance. I intend to seek an opinion on the legality of this appointment from the Government Accountability Office (GAO) and invite other Senators to join with me in that request. This is underhanded and an abuse of Executive authority — sadly this behavior has become the hallmark of this administration.”

Chris Dodd, joined by Kerry and Bob Casey (D-PA), sent a letter on April 5 to David M. Walker, Comptroller General Government Accountability Office, requesting that the office “examine a particular aspect of the legality of the Bush Administration’s recent recess appointment… as… Under 5 U.S.C. § 5503, in order for Mr. Fox to be paid for his services as Ambassador, his nomination would have to have been pending before the Senate on March 29th, when the Senate went into recess. Moreover, according to a separate statute, 31 U.S.C. § 1342, the U.S. Government cannot accept “voluntary services” from individuals except in an emergency. [T]he position in question is a statutory entitlement with a fixed rate of pay that cannot be waived (Section 401 of the Foreign Service Act of 1980 mandates a fixed rate of pay for the position of Ambassador). Dodd also has a petition on his presidential campaign page urging opposition to the appointment.

On April 24, 2007 it was reported that President Bush used a recess appointment, and named Mr. Fox Ambassador to Belgium.

Congress passed legislation in 1863 to prohibit the use of funds to pay the salary of anyone appointed during a Senate recess to fill a vacancy that existed “while the Senate was in session and is by law required to be filled by and with the advice and consent of the Senate, until such appointee shall have been confirmed by the Senate.” The current print version, 5 USC 5503, adds exceptions,

• “if the vacancy arose within 30 days before the end of the session of the Senate;
• if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent; or
• if, a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a recess appointment.”

Halstead notes in addition that Congress has included funding limitations in the General Governmental Appropriations Acts for over 60 years in order to protect the Senate’s advice and consent function.

For example, the Consolidated Appropriations Act, 2005, Division H, Sec. 609 states, “No part of any appropriation for the current fiscal year contained in this or any other Act shall be paid to any person for the filling of any position for which he or she has been nominated after the Senate “has voted not to approve the nomination of said person.”

Like Senators Dodd, Kerry and Casey, Sen. Joseph Lieberman (I-CT), Chairman of the Senate Homeland Security and Government Reform Committee, expressed displeasure at the appointment of Susan Dudley to head the Office of Information and Regulatory Affairs at the Office of Management and Budget. His spokeswoman Leslie Phillips released a statement cited by Matt Madia at OMB Watch on April 5. He said Bush’s decision “shows disrespect for the advise and consent responsibilities of the U.S. Senate and for the American people, on whose behalf the Senate acts. The power to recess appoint should not be used to avoid any scrutiny of Presidential nominees. Senator Lieberman was proceeding with Ms. Dudley’s nomination, and there has been no suggestion that she would be denied an up-or-down vote in the Senate.”

Once again referencing Prof. Kalt’s article: “Although a President technically might try to recess-appoint a rejected nominee anyway, there is a good argument to be made that this would be unconstitutional” citing a footnote in Staebler v. Carter, which found that “A President could probably not consistently with the principle of checks and balances grant a recess appointment to one rejected for the particular position by a vote of the Senate.”

He adds, “At the very least, it would mean that the President would be the one committing a constitutional impropriety.” Although Bush did not try to recess-appoint a rejected nominee, he had withdrawn Fox’s nomination before he could be rejected and then appointed him.

I emailed Prof. Kalt saying that I would find it interesting to learn how he viewed the appointment. His detailed reply included two main points. The first had to do with the questionable constitutionality.

First according to Kalt, “there were a couple of Democratic senators who had said they supported the nomination. Therefore, the president’s side could claim that if the nomination had gotten to the floor, it would have passed… that said, everyone knew what the rules were….The President’s action is pretty close to the line here–and I’m not sure which side of the line it is on.

“There is a continuum here. Worst case–nominee gets defeated, President recess appoints. I personally think that is unconstitutional, but the case law is pretty weak on the question, and it could certainly go either way.

“Next (less) worst case–nominee is going to get defeated, President withdraws and recess appoints. Next worst case–nominee is going to get defeated, but Senate doesn’t act in time, President recess appoints. Next worse case–potential nominee would likely face serious opposition, President doesn’t make the nomination until a recess.

“Under current case law (which I don’t like, because it allows recess appointments for vacancies that arose before the recess, and for brief recesses during the session), I would argue that the first two are unconstitutional and the last two are, at worst, constitutional improprieties. Of course, just because I think it is unconstitutional doesn’t mean that it is, or that (more importantly) a court would be able to decide the issue.”

Secondly, according to Kalt “Section 1342, which I would have cited in my article had I been aware of it, certainly strengthens Senator Dodd’s argument. But it only sharpens the question. It doesn’t decide it because the President can argue that the statute unconstitutionally infringes on his recess-appointment power (I don’t think he can plausibly invoke the emergency exception here, given the relatively low profile of the post). The argument is stronger than you might think, for this reason: the statute might make appointments that are valid under the constitutional clause nevertheless illegal under the statute. Section 5503 could also affect my bottom two scenarios above, and it isn’t clear that those appointments would violate the clause.

“In this case, though, I think Senator Dodd has a pretty good argument. His problem is going to be getting into court to argue it; I doubt that he has standing to sue to enforce section 1342. I can’t imagine anyone having standing to sue in this case, except perhaps for the official that Fox is displacing, who could sue for back pay if Fox’s appointment deprives the official of any compensation. If not, though, the case just won’t get decided. You can’t go into court just to argue that the law has been violated; you have to have a particularized, individualized, concrete injury. Dodd almost certainly doesn’t have one. A general interest in following the law is not enough to get into court. Dodd’s remedies are political–the Senate can retaliate against other nominees, not go into recess, etc. At the extreme, impeachment looms, but I doubt that this would be enough to win over the number of GOP senators you’d need to win.”

As early as April 5, Carl Hulse of the The New York Times speculated in a Caucus blog posting, A Narrow Window for Recess Appointments, that Bush’s April appointments might lead the Democrats to cut down on recesses.

When Los Angeles Times staff writer Judy Pasternak published her April 1 story “Bush again pushes 3 nominees seen as pro-industry: The president could skirt the Senate by using recess appointments” , she mentioned neither Biggs nor Fox. Instead, she said that lobbyists and officials were talking about recess appointments – Alex A. Beehler to be Inspector General and William Ludwig Wehrum, Jr. to be an Assistant Administrator of the Environmental Protection Agency. She noted these men and Dudley all had ” previously bypassed or questioned the EPA’s scientific process.”

On April 11, the White House announced the withdrawal of Weehrum and Beeler’s nominations, although listing Wehrum and Beehler‘s nomination as pending elsewhere, as of April 14. On April 12, Los Angeles Times published Pasternak’s “Bush drops 2 nominees for environmental posts: William Wehrum and Alex Beehler had been opposed by Democrats. Recess appointments are still possible.” Her story was the only main stream media mention of the possibility, and only Reuters picked up the with nominations’ withdrawal on April 11, then picked up by only the Washington Post, according to a search on April 13 at Google News.

According to Hogue at CRS (see also Recess Appointments Made by President George W. Bush, January 20, 2001-January 4, 2007 – Authors: Henry B. Hogue, Government and Finance Division; Maureen Bearden, Knowledge Services Group, January 15, 2007 – 17 pages) Bush had made more recess appointments than any other President, even before Dudley, Fox and Biggs. There is continued speculation that the withdrawal of the Wehrum and Beehler nominations may result in recess appointments in August, as outlined by Pasternak.

Some argue it is time for the Congress to pass a statute limiting recess appointments. Consider though how Kalt summed up his response to my question about Fox; his nomination is “probably unconstitutional, but it would be hard to get the courts to take the case. Even if they did take it, the President might win. There is an argument that his action is constitutionally OK, and the history of recess-appointment court decisions is a history of the court allowing things that, to most experts, they should not have.”