John Steele Gordon: A Short History of the Recess Appointment
[John Steele Gordon writes on business and economic history, as well as for COMMENTARY's blog.]
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."..
Read entire article at Commentary
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."..