He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.That is the text from Article II, Section 2, second and third paragraphs, of the US constitution. The first paragraph above says that the president gets to nominate appointees to various offices, and that those nominations become official appointments “by and with the advice and consent of the Senate.” We all understand that. That's why the appropriate committees scrutinize the nominees. That's why we have confirmation hearings. That's why we sometimes see the Senate withhold its consent and block a nomination that they find ill advised.
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.
The second paragraph above gives the president a contingency plan. If something happens while congress is not around to give its advice and consent, the president can, in order to fill the position during such an emergency, make a temporary appointment.
It's sensible for the constitution to cover that contingency. And it's clear that it is a contingency. It's clear that it isn't there to give the president a way to get around the previous paragraph, to eliminate the “advice and consent of the Senate” when it suits the president to do so. It isn't there to undermine the checks and balances that are built into our constitution.
And yet King George has now, for at least the third time by my counting, used that contingency plan to make appointments to which the Senate has refused to consent. He did it with controversial judicial nominations in 2004. He did it when he appointed John Bolton as UN Ambassador in 2005. And he did it again last week, with three controversial appointments that had already been blocked in the Senate even back when it was Republican controlled.
Now, recess appointments are not unusual — President Clinton, for example, made 140 of them during his eight years, and, while Bush has already exceeded that in six years, that, in itself, is not the problem.
The problem is that the Emperor has established a pattern of using this technique to bypass the advice and consent and to make appointments that the Senate has already let him know are unacceptable. The problem is that he refuses to withdraw the nominations and provide alternatives for the Senate to consider. The problem is that this is more evidence of this president's abuse of power.
It's certainly arguable that he's not even allowed to do this under Article II, Section 2. A nomination that was considered six months ago can hardly be thought of as one that “may happen during the recess.” But even a liberal reading of that power must not allow it to be used in this way.
Franklin Roosevelt was allowed, by the constitution, to be elected to four terms as president. Yet that led to the ratification of the 22nd amendment in 1951, limiting future presidents to two terms. Perhaps this, too, is a case for consideration of an amendment, this time to clarify when a recess appointment is appropriate... and when one is not.