harlan logo


March 28th, 2014

Benedict Carrizzo


Sources: United States Constitution, Letter from George Washington to William Drayton, (Debate in North Carolina Ratifying Convention, Speech of Archibald Maclaine.

Statement of Argument- It is imperative that the President’s should always be able to exercise his recess-appointment powers and shall not be limited by any checks and balances argument. This principle does not uplift the power of the presidency. The President will be able to fill vacancies that exist during a recess and he shall not be limited to vacancies that first arose during that recess. There should also be no restrictions in the President’s recess-appointment power, which means that he may exercise his power during Senate pro forma sessions.


Argument- ““[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” This quotation from the United States Constitution illustrates the sometimes undermined power that the President has. Although he must look towards the “advice and consent” of the Senate, he still has his own authority. This is a valid statement by the founders of this country to prevent the making of another king; hence, there may be a great and unreasonable inequality between the different branches of government. This is highly outdated, considering the concept of democracy in America has been mastered. The Constitution is a document that is highly susceptible to change and is considered to be highly “flexible.” If a president has high merits he should be able to appoint on his own. We have seen executive power on the rise in recent history, from the days of Franklin Roosevelt to the fanatical obsession of executive power from Dick Cheney. We need not completely subside to the exact wording of the Constitution as many “originalists” believe. Flexibility of the Constitution is a highly important aspect of our democracy and needs to be maintained always.

“Sir. The Office of Judge of the district Court in and for South Carolina District having become vacant; I have appointed you to fill the same, and your Commission therefore [sic] is enclosed. You will observe that the commission which is now transmitted to you is limited to the end of the next Session of the Senate of the United States. This is rendered necessary by the Constitution of the United States, which authorizes the President of the United States to fill up such vacancies [sic] as may happen during the recess of the Senate—and appointments so made shall expire at the end of the ensuing Session unless confirmed by the Senate; however there cannot be the smallest doubt but the Senate will readily ratify and confirm this appointment, when your commission in the usual form shall be forwarded to you.” This quote from a “Letter from George Washington to William Drayton” suggests that great executive power can be implemented and is validated by the United States Constitution. Those who use the Constitution as an argument against the president’s right to utilize his recess-appointment power are incorrect in their logic because George Washington — a writer of the Constitution — is contradicting their common arguments. What the framers had in mind is what justifies what is written.
“Congress are not to be sitting at all times; they will only sit from time to time, as the public business may render it necessary. therefore the executive ought to make temporary appointments, as well as receive ambassadors and other public inconveniences.”  This is from a debate in North Carolina. It is very true that Congress will not be in session “at all times.” With the very short terms that congressmen have, they have little time to sit and debate. They must worry about their own positions and maintaining those positions. Congressmen represent the states, which shifts some power away from the executive branch to the legislative branch of government. The president has a certain detachment from the American public because of the indirect effects of his policies. He does not directly represent the people as their congressmen do. This is because “the President must do his business, or else it will be neglected; and such neglect may occasion public inconveniences.” The Senate’s relation to the president is as an advisory board, and should not reprimand the power to appoint temporary congressman (advisers). Self appointment from the Senate, rather than the president, may pose as an unnecessary distraction from work that needs to be done.
Although it is very difficult to do so, the President should be able to appoint during a “pro forma session.” Although this makes it very difficult for the President to do this, he should still have the ability to do it. His restriction to do this in such a specific, extraordinary circumstance would bring into question whether or not this ability is even necessary. There should be no restriction of a president’s appointment power, regardless of circumstances.
Conclusion: Regardless of circumstances, a President should always be able to appoint without limitations. The Constitution gives him the power to do so; and, with regard to checks and balances, keeping this power simply keeps it balanced. Suppressing presidential power too much may create a powerful legislative branch, which would disrupt the system. The president still needs the advice and consent of the Senate in order to perform certain actions. The founding fathers prove that the president can have this appointment power and, in current days, does not create the threat of a monarchy or tyrannical power.