Adding Recess Appointments to the President's “Tool Chest” of Unilateral Powers

Abstract

In the struggle to control the federal bureaucracy, presidents have an overlooked but powerful tool: the recess appointment. By making recess appointments, presidents can fill vacancies without the advice and consent of the Senate. The authors delineate three conditions that define presidential unilateral powers and demonstrate how recess appointments fit within that paradigm. Presidents, the authors argue, should be more likely to make recess appointments to important policy-making positions, namely, major independent agencies. The authors compile a data set of every civilian nomination and recess appointment between 1987 and 2004. After controlling for other factors, the authors find strong support for their theory.

Going it Alone: The Politics of Signing Statements from Reagan to Bush II

“…Presidents do seem to increasingly rely on the constitutional signing statement to enhance the power of the office as the presidential election year looms. The work by Black et al (2007) offers a parallel to this result in that presidents significantly increase recess appointments to solidify their legacy in the face of a presidential party change.…”

“…Certainly, ideological differences can drive significant interinstitutional conflict between the president and Congress (Bond and Fleisher, 2000;Sinclair, 2006). More specifically, though, there is evidence suggesting that variation in the use of some unilateral tools can be explained by ideological differences between Congress and the president (Deering and Maltzman, 1999;Martin, 2005;Black et al, 2007). Following similar logic as applied earlier to unified and divided government, it would seem that smaller ideological differences between Congress and the president would increase the likelihood of constitutional signing statements, while greater differences would more likely be associated with rhetorical statements.…”

“…Under unified government, there is a greater tendency for overlap in political and policy goals between the majority party and the president, so the likelihood of congressional backlash against presidential power is dramatically reduced as compared to divided party control. This suggests that presidents have incentives to use constitutional signing statements when Congress is least likely to challenge them, and not necessarily for reasons related to circumventing policy gridlock, as found by other work on unilateral action (Moe and Howell, 1999;Deering and Maltzman, 1999;Black et al, 2007).…”

“…The president's power over appointment decisions represents one such area of study. For example, Black et al (2007) find evidence suggesting that presidents are significantly more likely to skirt the traditional appointment process in favor of recess appointments as the potential for ideological gridlock in Congress grows. And although the analysis of Rottinghaus and Maier (2007) does not formally assess whether presidents use executive proclamations to circumvent a hostile Congress, the authors do argue that such decisions are dependent on features of the political environment.…”

Lobbying (strategically appointed) bureaucrats

“…Recess appointees are required to leave office at the end the next Senate session or when a confirmed nominee is assigned the position. This allows recess appointees to serve a period of up to nearly 2 years (Black et al 2007). …”