The Kill Switch: The New Battle Over Recess Appointments

Abstract:     
Presidential recess appointments have strained relations between Congress and the executive branch since the administration of George Washington. But in 2007, Congress began using a procedure to prevent such appointments from happening at all. By sending one member to stand in front of an empty chamber while the rest of the Senate took vacation, Congress claimed it was in “pro forma” session, not at recess, and that the President could therefore not make recess appointments. While Presidents Bush and Obama acquiesced to this tactic and declined to make appointments during such “pro forma” sessions, Obama changed course in early 2012. In so doing, this Comment argues, Obama’s appointments were on solid constitutional footing. Not only did the “pro forma” sessions deactivate an enumerated power of the President, but they did so by explicitly involving the House of Representatives in the appointments process, an event the Framers specifically sought to guard against. Indeed, by putting an end to recesses (and thus recess appointments), Congress defied a procedural assumption of the Framers written into the Constitution and practiced by legislatures for millennia. From a policy standpoint, blocking presidential appointments perpetuated a harmful glut of unfilled offices, but was in some cases self-defeating. The President, through the Appointments Act, has the power to fill certain positions with acting heads who carry out his policy goals.

Number of Pages in PDF File: 38

Accepted Paper Series