The Expanding Power of a Recess Appointment

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The Senate balked at confirming John Bolton partly because of his reputation for being abrasive with colleagues and for also being harshly critical of the United Nations. Throughout American history, presidents have angered senators by using recess appointments


John Bolton's is only the latest in a long history of presidential recess appointments. NPR's David Welna reports on a power that presidents have been using more often.

DAVID WELNA reporting:

Democrats reacted angrily to President Bush's recess appointment of John Bolton. Republicans had a similar response six years ago when President Clinton used a recess appointment to send James Hormel, who was openly gay, to Luxembourg as US ambassador. Here's what then Republican Majority Leader Trent Lott had to say about that appoint.

Senator TRENT LOTT (Republican Majority Leader, Mississippi): It sours the well on a number of appointments and we will have to respond. We cannot stand mute when an appointment is made of this nature and a subversion of the process in the Senate.

WELNA: Throughout American history, presidents have angered senators by using recess appointments. University of North Carolina law Professor Michael Gerhardt is an expert on the appointments process.

Professor MICHAEL GERHARDT (University of North Carolina): The difficulty is that once you get a recess appointee in office, that person oftentimes becomes a greater, rather than lesser, focus for controversy and many of the recess appointees don't continue into office after their appointment lapses.

WELNA: The Constitution does say the president can make such appointments, quote, "during the recess of the Senate." Emory University law Professor William Mayton says that clause was not originally intended as a means for making an end run around the Senate.

Professor WILLIAM MAYTON (Emory University): What it contemplated was someone dying in office, an unexpected resignation or something like that. It was for vacancies that occurred during the recess when the Senate was not in session to fill it. So to keep the office occupied, the president was given the power to make a recess appointment.

WELNA: But University of San Diego law Professor Michael Rappaport says by 1823, then Attorney General William Wirt expanded the scope of recess appointments to allow them for vacancies that occurred even while Congress was still in session.

Professor MICHAEL RAPPAPORT (University of San Diego): And then he says, `Well, there's an objection that could be made which is presidents will use its power to circumvent the Senate. The Senate may not want somebody. The president will then wait for the recess and recess-appoint someone.' And he says, `That would never happen. We shouldn't assume that kind of behavior on the part of presidents.' Of course, as time has gone on, that's exactly the kind of thing that's happened, but presidents, both Democrat and Republican presidents, have used the power in that way.

WELNA: And they've used it for both executive and judicial appointments. President Eisenhower, for example, recess-appointed three Supreme Court justices, including Chief Justice Earl Warren. Emory University's Mayton says seating judges through recess appointments has a potential drawback for judicial independence.

Prof. MAYTON: The fear is that a judge serving on a recess appointment will be looking ahead to being confirmed or voted down as his term ends by the Senate and that's going to cause the judge to perhaps bend in his or her decisions.

WELNA: President Bush has recess-appointed two appeals court judges and one of them, William Myers, this year won Senate confirmation. Mr. Bush has also recess-appointed more than a hundred other officials. Some have been resisted by the Senate, but Paul Light, who's an expert on executive branch appointments at New York University, says more and more recess appointments are being made because senators place holds on nominees as a means of pressing their own political agendas.

Mr. PAUL LIGHT (New York University): There has been a slow but steady relaxation of the threshold surrounding the use of holds so that more and more nominees are, in fact, being stopped in the Senate for these unrelated policy issues and that increases the presidential desire to use recess appointments or to argue that appointees should not even be subject to Senate confirmation.

WELNA: The result is ever more recess appointments. University of North Carolina's Gerhardt says that trend's bound to continue.

Prof. GERHARDT: There's a tendency we shouldn't ignore and that is that as power expands, it tends not to contract. So as the president expands his power, we should expect subsequent presidents not to pull back on it but, in fact, to build on that expansion.

WELNA: And it's a power that the courts have yet to challenge.

David Welna, NPR News, the Capitol.

INSKEEP: You can find some background on John Bolton at

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