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Harlan Institute » Emily Grupski, Lenny Crawford, James Kotak, Tom Harrington
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Emily Grupski, Lenny Crawford, James Kotak, Tom Harrington

March 28th, 2014

               Recently in United States history, Presidents George W. Bush and Barack Obama have used a presidential power called a “Recess Appointment” during their terms. A recess appointment is the appointment of a federal official, by the U.S. President, while the U.S. Senate is in recess.  The extent of the president’s recess appointment power can be interpreted differently by analyzing the cases in which Presidents Obama and Bush used their powers.  In 2007 President Bush attempted to use his recess appointment power in an attempt to gain temporary control of a democratic controlled senate. In 2010 President Obama used his recess appointment power to appoint Craig Becker to the NLRB. By looking at the ways both these presidents used their recess appointment powers, one can see that the extent of the president’s recess appointment power can be vastly different in each case its used.

The answer, to whether or not the President has the power to use recess-appointments during recesses within sessions of the Senate, can mean a major swing in power. If the president is limited to only using this power in the scheduled recesses of the Senate he doesn’t have as much power. If he can fill vacancies when there’s a small break in a session, the President can essentially shift the power of the Senate in his favour if he so pleases. The U.S. Constitution states 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.” (Article II, Section II). While the breaks in sessions are recesses, they are not “the recess.” The phrase: “the recess”, is not a plural statement and is only referring to one recess in particular. So a strict interpretation of the Constitution would mean that the President does not have the power to appoint people to vacancies during recesses within sessions, only in the times where the Senate is not in a period of Session. However, this is largely ignored by President’s and often argued for by the Senate no matter which party controls either branch. Each side want’s more power and for the other branch to have less power. So while the president may continue to deny it, technically the President only has the authority to make recess-appointments in between enumerated sessions of the Senate and not during recesses within sessions of the Senate.

The President may or may not be allowed to fill vacancies that exist during a recess depending on the interpretation. A loose interpretation permits the President to fill any positions that became vacant prior to the recess and continued to be empty through out the recess, in addition to appointing positions that became available during the recess. This interpretation is more wildly accepted and been supported by the courts which permits for flexibility. The President is granted recess appointment power that also may be exercised when the Senate is convening every three days in pro forma sessions. Although the President has established this constitutional right, who is appointed is under scrutiny. When President Obama announced his intentions to create four recess appointments in January of 2012- three for the NLRB and one to be a Director of the Consumer Financial Protections Bureau- it was not found to be unconstitutional for being appointed during three and four-day recesses, rather the fact that they had been appointed to the NLRB was unconstitutional.

The scope of the President’s recess power can only be determined by the officials in office, since it can be interpreted in numerous ways. A recess is defined by the United States Senate as “A temporary interruption of the Senate’s proceedings, sometimes within the same day. The Senate may also recess overnight rather than adjourn at the end of the day.  Recess also refers to longer breaks, such as the breaks taken during holiday periods, pursuant to concurrent resolution.” In 1799, James Adams wrote to his Secretary of War (James McHenry) stating that, “It is not upon the act of the 3d of March ultimo, that I ground the claim of an authority to appoint the officers in questions, but upon the Constitution itself.” As it has been loosely interpreted by our founding fathers in our still developing democracy, it is still loosely defined today in modern day, granting more flexible privileges and a larger scope of powers to our President.