Powering down the presidency: the rise and fall of recess appointments.

Author:Ostrander, Ian
Position::The Contemporary Presidency - Report
 
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In late 2007, the five-member National Labor Relations Board (NLRB or the Board) was faced with an impending crisis. This independent board, which is charged with investigating unfair labor practices and has oversight over important labor union proceedings, was running out of time. The terms of three of its five-member board were set to expire in December, which would leave the Board with less than a majority of its members and thus legally unable to make decisions because it lacked a quorum. Just before losing the quorum, however, the Board agreed to delegate its powers to a three-member commission, in which case the remaining two members could satisfy the quorum requirements (a simple majority) necessary to perform the duties of the Board. While seemingly a stopgap measure, the NLRB continued to operate without a true quorum until well into 2010. Ultimately, the Supreme Court decided (in New Process Steel, LP v. NLRB [2010]) that the decisions of the two-member Board, which numbered in the hundreds and spanned more than two years, were invalid. Legally, the NLRB was unable to function.

Between the 110th and 112th Congresses, Presidents George W. Bush and Barack Obama both struggled to secure Senate confirmation of their nominees with just 2 of 21 formal nominations ending with success. To maintain a quorum after the Supreme Court ruling, President Obama resorted to a previously common unilateral power: a series of recess appointments. The crisis, however, continued. In 2012, the NLRB was again facing an imminent shutdown. In order to forestall the president from issuing further recess appointments, a procedural trick using pro forma sessions--pioneered by Democrats to thwart President Bush in 2007--was used by Republicans in Congress to prevent a recess of sufficient length to issue recess appointments. (1) In defiance of this strategy, President Obama made four recess appointments, three of which were to NLRB. While President Obama defended his actions as legal (Office of the Legal Counsel 2012), the Supreme Court eventually ruled in Noel Canning v. NLRB (2014) that the nominations were invalid. Legally and practically, the president was barred from making recess appointments by Congress.

The growing practice of using pro forma sessions to preempt presidential recess appointments is, arguably, not the most important change to executive nominations politics to occur within the Obama administration. After decades of ever-increasing use of dilatory tactics, the U.S. Senate reformed its procedures so as to reduce the filibuster's bite on the majority of executive nominations. In short, the reform now allows for simple majorities to confirm controversial nominees. When presidents control a majority of the Senate, they can now expect to successfully confirm key nominations such as NLRB officials.

The combined influence of pro forma sessions and the Senate rules change will likely be far greater than the mere sum of the parts. When government is divided, pro forma sessions can easily block recess appointments. When government is unified, presidents will have no need of recess appointments for key nominations. Together, these trends may forever alter interbranch politics by removing recess appointments from presidents' standard tool chest.

The goal of this article is to investigate the recent changes in the executive nominations process and to consider their influence on the future use of presidential recess appointments. In the following section, I will provide an overview of presidential recess appointments as well as provide some empirical description of this power's use in the past five presidential administrations. Next, I will discuss the political contexts and key elements of two recent developments within the executive nominations process: the rise of pro forma congressional sessions designed to thwart presidential ambitions and the recent Senate rules reform lowering cloture requirements on most nominations to a simple majority. After describing each in detail, I will discuss the implications of their combined influence on the future of recess appointments. Finally, I will conclude with a discussion of how these implications reflect upon the use of unilateral executive powers broadly.

Recess Appointments

Recess appointments are a means by which a president can fill vacancies in the executive bureaucracy during breaks in congressional sessions. This power is conferred upon presidents within Article II, Section 2 of the U.S. Constitution. It states that "[t]he 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." (2) These positions are thus relatively temporary and would be held only until the interim appointee was confirmed by the Senate (in which case the normal term of service would apply) or until the end of the next congressional session, at which point the office became vacant again. In an era during which Congress was often out of session for months at a time, the provision for recess appointments was necessary to ensure that vacancies in high offices did not arise and disrupt the functioning of government.

In the past, recess appointments may have been a trivial affair to fill vacancies during a long recess. More recently, Black et al. (2007) have pointed out that recess appointments now deserve to be listed within a president's tool box as a unilateral executive action. Using the framework suggested by Howell (2003) as well as Moe and Howell (1999), Black et al. (2007) demonstrate that recess appointments qualify as a unilateral power because they are based in constitutional ambiguity, presidents act both first and alone, and these actions have direct policy influence. The increasing reliance upon recess appointments to fill key vacancies fits within the larger pattern of presidents using their unilateral powers to influence the bureaucracy as a part of a larger administrative strategy (Waterman 2009).

As is often noted, personnel is policy. The power to circumvent the requirements of legislative confirmation in making appointments can significantly influence how agencies or boards operate. Nowhere is this power more clear than in major independent regulatory boards as just a few appointments can radically shift a board's median. As noted by Nokken and Sala (2000, 104), regular recess appointments to major independent regulatory boards would allow presidents to "end-run an intransigent Senate by filling vacancies during recesses with hand-picked appointees who, presumably, would do his/her bidding." Recent presidents may have been trying exactly that. Corley (2006, 679) finds that on average 12% of all appointments to major independent regulatory commissions were made using recess appointments.

The growth in the use of recess appointments by modern presidents may be due to increases in senatorial delay of executive nominations. Many recent studies have noted that delay is endemic to the Senate nominations process (Chiou and Rothenberg 2013; McCarty and Razaghian 1999; O'Connell 2009) and furthermore that such delay is a leading cause of failure for nominees (Bond et al. 2009). Furthermore, Corley (2006) has demonstrated that presidents are more likely to use their recess appointment powers in the face of senatorial delay, which implies that presidents have been using this power in instances of controversy or disagreement. Combined, these studies suggest that presidents have been using their recess appointment powers in order to better control the bureaucracy in the face of partisan obstruction.

The power to make recess appointments is, however, not absolute. Most importantly, such recess appointments are inherently temporary in nature as the appointee may only serve until the end of a Congress and will have to step down once a nominee is confirmed. Such appointments are also limited to a congressional recess, which has traditionally been defined as an adjournment of at least three days (Hogue 2008) but in practice has been used in much longer periods. (3) Such interim appointments may also face concerns over their legitimacy and longevity, and complaints from the Senate are common. As such, the power is constrained and may be a second-best solution for presidents facing delay.

Trends over Time

Presidents have been making recess appointments to executive offices since the George Washington administration. Historically, presidents were able to take advantage of the long intersession congressional recesses in order to fill key vacancies. As congressional sessions lengthened, these recesses became much shorter. After 1947, presidents began to make greater use of intrasession recess appointments (Carrier 1994), which are made during the shorter breaks within a Congress such as the traditional August recess. While more controversial, the practice of using intrasession recess appointments has held up in court. (4) Over time, prior research has suggested that recent presidents are increasingly turning to either kind of recess appointments to avoid Senate obstruction (Black et al. 2007; Corley 2006).

Each of the past five presidents--Ronald Reagan through Barack Obama--has used recess appointments to fill vacancies. Table 1 shows the total number of recess appointments made within each term of the last five presidencies. While President Obama's second term is not yet complete, he has yet to use a single recess appointment. Overall, he issued just 32 recess appointments in his first term. This stands in stark contrast with his predecessors with Ronald Reagan using a total of 232 recess appointments followed by George W. Bush with 171 and Bill Clinton at 139- In just one term, George H. W. Bush is well ahead of Barack Obama at 78 recess...

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