Tuesday, December 4, 2007

Recess Appointments and Limiting Executive Aggrandizement

In the department of political bellyaching, this one is pretty weak:

“In a political maneuver designed to block my ability to make recess appointments, congressional leaders arranged for a senator to come in every three days or so, bang a gavel, wait for about 30 seconds, bang a gavel again, and then leave,” Bush said. “Under the Senate rules, this counts as a full day. If 30 seconds is a full day, no wonder Congress has got a lot of work to do.”

So let's recap: Bush is complaining because he wanted to push through some appointments without the Senate's approval. Since his term ends in January 2009, any recess appointments would effectively last until almost the time he leaves office (they last until the end of the next session of the Senate). The Senate was on a recess for just a couple weeks in this case.

Bush's bellyaching amounts to claiming that not only are recess appointments his right as President, but they are also intended under the Constitution as a way of getting around the requirement for the Senate's advice and consent in appointments. Of course, the original purpose of the recess appointment was borne entirely out of practical concerns: Congress was usually in session only a few months a year, yet the government needed to run regardless of whether Congress was in session. Thus, if a vacancy occurred while Congress was away from town, it made sense for the President to appoint someone temporarily until the Senate had an opportunity to confirm the person.

Now, the fact that the Senate is only out of session for a few weeks at a time a couple of times a year is a problem in and of itself- it means the size of the federal government is really quite larger than it could and should be. But to suggest that the Senate is somehow depriving the President of a right through shady political maneuvers is quite silly. After all, the very concept of stalling until Congress is out of session to make an appointment without the Senate's advice and consent is a shady political maneuver to begin with.

Frankly, the importance of the Senate's actions in this case cannot be underestimated. The reason for this is not that Bush's recess appointments were necessarily going to destroy the fabric of American society. Instead, the reason is simply that the Senate's actions set an important precedent that future Presidents should not expect to get away so easily with circumventing the advice and consent clause of the Constitution. If the aggrandizement of Executive Power is to be the Bush/Cheney legacy, then actions like this are an important way of limiting that legacy.