Under the Constitution, the President and the Senate share the power to make appointments to the highest-level politically appointed positions in the federal government. The Constitution also empowers the President unilaterally to make a temporary appointment to such a position if it is vacant and the Senate is in recess. Such an appointment, termed a recess appointment, expires at the end of the following session of the Senate. This report identifies recess appointments made by President George W. Bush during his presidency. Basic descriptive statistics regarding these appointments are also provided.
President Bush made 171 recess appointments. President William J. Clinton, in comparison, made a total of 139 recess appointments during the course of his presidency. Of President Bush's 171 recess appointments, 99 were to full-time positions, and the remaining 72 were to part-time positions. Thirty were made during recesses between Congresses or between sessions of Congress (intersession recess appointments). The remaining 141 were made during recesses within sessions of Congress (intrasession recess appointments). The duration of the 24 recesses during which President Bush made recess appointments ranged from 11 to 48 days. The average (mean) duration of these recesses was 26 days, and the median duration was also 26 days.
In 165 of the 171 cases in which President Bush made a recess appointment, the individual was also nominated to the position to which he or she was appointed. In 162 of these 165 cases, the individuals being appointed had previously been nominated to the position. In the three remaining cases, the individuals were first nominated to the position after the recess appointment. Of the 165 cases in which the President submitted a nomination for the recess appointee, 95 resulted in confirmation and the remaining 70 failed to be confirmed. In 31 of these 70 recess appointment cases, the President withdrew the nominations of the appointees, and in the remaining 39 cases, the nominations were returned to the President.
Additional information may be found in other CRS reports. For general information on recess appointments practice, see CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by [author name scrubbed]. For information on related legal issues, see CRS Report RL32971, Judicial Recess Appointments: A Legal Overview, and CRS Report RL33009, Recess Appointments: A Legal Overview, both by T.J. Halstead.
This report will not be updated.
Under the Constitution, the President and the Senate share the power to make appointments to the highest-level politically appointed positions in the federal government.1 The Constitution also empowers the President unilaterally to make a temporary appointment to such a position if it is vacant and the Senate is in recess.2 Such an appointment, termed a recess appointment, expires at the end of the following session of the Senate.3 The records of debate at the Constitutional Convention and the Federalist Papers provide little evidence of the framers' intentions in the recess appointment clause. Opinions by later Attorneys General, however, suggested that the purpose of the clause was to allow the President to maintain the continuity of administrative government through the temporary filling of offices during periods when the Senate was not in session, at which time his nominees could not be considered or confirmed.4 This interpretation is bolstered by the fact that both Houses of Congress had relatively short sessions and long recesses during the early years of the Republic. In fact, until the beginning of the 20th century, the Senate was, on average, in session less than half the year.5
This report identifies recess appointments made by President George W. Bush during his presidency.6 Basic descriptive statistics regarding these appointments are also provided. Additional information concerning recess appointment practice, judicial recess appointments, and legal issues related to recess appointments may be found in other CRS reports.7
President Bush made 171 recess appointments. President William J. Clinton, in comparison, made a total of 139 recess appointments during the course of his presidency. Of President Bush's 171 recess appointments, 99 were to full-time positions, and the remaining 72 were to part-time positions. Table 1 provides the number of recess appointments in each of these categories for each year of the Bush presidency. In general, the top leadership positions in the federal government are full-time positions to which appointments are made through the advice and consent process. For example, among the full-time offices to which President Bush made recess appointments, five were deputy secretary positions and two were federal appeals court judgeships. Part-time positions can also be vested with statutory policy-making authority that can have broad impact. The members of the Defense Base Closure and Realignment Commission, who received recess appointments from President Bush, could be considered among the positions in this category.
Table 1. Recess Appointments by President George W. Bush
to Full- and Part-Time Positions
|
Positions |
2001 |
2002 |
2003 |
2004 |
2005 |
2006 |
2007 |
2008 |
2009 |
Total |
|
Full-time |
1 |
19 |
14 |
30 |
8 |
23 |
4 |
0 |
0 |
99 |
|
Part-time |
0 |
3 |
24 |
15 |
13 |
17 |
0 |
0 |
0 |
72 |
|
Total |
1 |
22 |
38 |
45 |
21 |
40 |
4 |
0 |
0 |
171 |
Sources: Table developed by the Congressional Research Service using data obtained, during the Bush presidency, from news releases from the White House website, now at http://georgewbush-whitehouse.archives.gov/; the White House Executive Clerk; and the Legislative Information System (LIS) nominations database, at http://www.congress.gov/nomis/.
The text of the Constitution states that the President has the authority to exercise this power during "the Recess of the Senate."8 The precise meaning of this phrase has been a matter of some debate related to two types of congressional recess. The Twentieth Amendment to the Constitution provides that Congress will meet annually on January 3, "unless they shall by law appoint a different day."9 In recent decades, each Congress has consisted of two 9-12 month sessions separated by an intersession recess. The period between the second session of one Congress and the first session of the following Congress also is referred to as an intersession recess. Within each of the sessions, Congress has typically adjourned for 5-11 intrasession recesses of four days or longer, usually in conjunction with national holidays.
Some scholars have asserted that recess appointments may be made only during intersession recesses.10 Others take a broader view of the meaning of "Recess" as used in the recess appointments clause and have asserted that the President may also make recess appointments during intrasession recesses.11 Notwithstanding the ongoing discourse in this area, recent Presidents have made recess appointments during both kinds of recesses. Of the 171 recess appointments by President Bush, 30 were intersession recess appointments and 141 were intrasession recess appointments. (See Table 2.)
As Table 2 shows, most of President Bush's recess appointments were to positions in the executive branch. Six of the 171 appointments were to positions in the judicial branch. Two of these—those of Charles W. Pickering and William H. Pryor—were to federal judgeships. The remaining four were to full- and part-time membership positions on the United States Sentencing Commission.12
In 165 of the 171 cases in which President Bush made a recess appointment, the individuals were also nominated for the position to which they were appointed.13 Table 2 shows the timing of these nominations and the final disposition of these cases. In 162 of these 165 cases, the individuals being appointed had previously been nominated to the position. In the three remaining cases, the individuals were first nominated to the position after the recess appointment.
Of the 165 cases in which the President submitted a nomination for the recess appointee, 95 resulted in confirmation, and the remaining 70 failed to be confirmed. In 31 of these 70 cases, the President withdrew the nominations of the appointees. In the remaining 39 cases, the nominations were returned to the President.
Table 2. Summary Information Concerning Recess Appointments
by President George W. Bush
|
All recess appointments |
171 |
|
|
By type of recess |
||
|
Appointments during intersession recesses—between sessions of Congress |
30 |
|
|
Appointments during intrasession recesses—within sessions of Congress |
141 |
|
|
By branch |
||
|
Appointments to executive branch positions |
165 |
|
|
Appointments to judicial branch positions |
6 |
|
|
Recess appointments for which a nomination was made |
165 |
|
|
By nomination timing |
||
|
First nomination preceded recess appointment |
162 |
|
|
First nomination followed recess appointment |
3 |
|
|
By final dispositiona |
||
|
Resulted in confirmation |
95 |
|
|
Withdrawn by the President |
31 |
|
|
Returned to the President |
39 |
|
Sources: Table developed by the Congressional Research Service using data obtained, during the Bush presidency, from news releases from the White House website, now at http://georgewbush-whitehouse.archives.gov/; the White House Executive Clerk; and the Legislative Information System (LIS) nominations database, at http://www.congress.gov/nomis/.
a. The number shown is the number of cases, rather than the number of nominations. Some recess appointments were associated with more than one nomination. For example, the President usually submits a new nomination of an individual after the Senate reconvenes following his or her recess appointment in order to comply with 5 U.S.C. § 5503. For more information, see CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by [author name scrubbed].
In 17 of the 162 cases in which the President had previously submitted a nomination to the Senate, the nominations had been under Senate consideration for more than a year at the time of the recess appointment. In 25 cases, the nominations had been under Senate consideration for less than a month at the time of the recess appointment. The elapsed times between initial nomination and recess appointment ranged from six days to 966 days (approximately 32 months).14 The mean elapsed time for the 162 cases in which a nomination preceded the recess appointment was 185 days. The median elapsed time was 162 days (between five and six months).15
As previously noted, until the beginning of the 20th century, the Senate was, on average, in session for less than half the year. In recent decades, by contrast, the Senate has been in session through most of the year, but has taken a series of recesses within each session. As a result, recent recesses of the Senate, which have occurred both within and between sessions, have been generally shorter than were the recesses of earlier times, which occurred chiefly between sessions.16
The Recess Appointments Clause does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over the last century, as shorter recesses have become more commonplace, Attorneys General and the Office of Legal Counsel have offered diverse views on this issue. In 1993, a Department of Justice brief implied that the President may make a recess appointment during a recess of more than three days. It stated, "The Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives .... It might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant."17
It has become commonplace for Presidents to make recess appointments during recesses of less than 30 days. Between the beginning of the Reagan presidency and the end of the George W. Bush presidency, it appears that the shortest intersession recess during which a President made a recess appointment was 11 days,18 and the shortest intrasession recess during which a President made a recess appointment was 10 days.19
From November 2007 through the end of the Bush presidency, the Senate structured its recesses in a way that was intended, at least initially, to prevent the President from making recess appointments.20 On November 16, 2007, the Senate Majority Leader announced that the Senate would "be coming in for pro forma sessions during the Thanksgiving holiday to prevent recess appointments."21 The Senate recessed later that day and pro forma meetings22 were convened on November 20, 23, 27, and 29, with no business conducted. The Senate next conducted business after reconvening on December 3, 2007. On December 19, 2007, the Senate Majority Leader announced that similar pro forma meetings would be held in the following days, again for the purpose of preventing the President from making recess appointments.23 Later that day, the Senate agreed, by unanimous consent, to hold a series of pro forma meetings until sine die adjournment of the first session, and to hold another series beginning with the convening of the second session.24 The Senate recessed on December 19, 2007, and pro forma meetings were held on December 21, 23, 26, 28, and 31. The Senate adjourned sine die on December 31, 2007. On January 3, 2008, the Senate convened its second session, but no other business was conducted. Pro forma meetings of the Senate were held on January 7, 9, 11, 15, and 18. On January 22, the Senate reconvened and conducted business. Similar procedures were followed during other periods, during 2008, that would otherwise have been Senate recesses of a week or longer in duration.25 The President made no recess appointments between the initial pro forma sessions in November 2007 and the end of his presidency.
Table 3 identifies, for the duration of the Bush presidency, (1) each intersession recess; (2) each intrasession recess of four or more days; (3) the dates the Senate adjourned for, and reconvened from, each of these recesses; (4) the number of days adjourned; and (5) the number of recess appointments made by the President during that period. The duration of the recesses in which President Bush made recess appointments ranged from 11 to 48 days. The average (mean) duration was 26 days, and the median duration was also 26 days.
The elapsed time between the recess appointment and the reconvening of the Senate ranged from one day to 36 days. The average elapsed time was 14 days, and the median elapsed time was 11 days. President Bush made 29 recess appointments three days or less before the end of the recess. He made 50 recess appointments 21 or more days before the end of the recess.
The individual recess appointments are shown in Tables 4 and 5. Table 4 provides, for each appointment to a full-time position, the name of the appointee, the position to which he or she was appointed, and the date on which the appointment was made. Table 5 provides the same information for appointments to part-time positions. For both tables, entries in bold are recess appointments that were made during a recess within a session of Congress (intrasession recess appointments). All other entries are recess appointments that were made during a recess between Congresses or between sessions of Congress (intersession recess appointments).
Table 3. Number of Recess Appointments During Senate Intersession Recesses and Intrasession Recesses of Four or More Days, January 20, 2001-January 20, 2009
|
Date adjourned |
Date reconvened |
Number of days adjourneda |
Number of recess appointments |
|
(The first session of the 107th Congress convened on 01/03/01. The Senate adjourned on 01/08/01 and reconvened on 01/20/01.) |
|||
|
Intrasession recesses during the 107th Congress, 1st session |
|||
|
02/15/01 |
02/26/01 |
11 |
0 |
|
04/06/01 |
04/23/01 |
17 |
0 |
|
05/26/01 |
06/05/01 |
10 |
0 |
|
06/29/01 |
07/09/01 |
10 |
0 |
|
08/03/01 |
09/04/01 |
32 |
1 |
|
10/18/01 |
10/23/01 |
5 |
0 |
|
11/16/01 |
11/27/01 |
11 |
0 |
|
Intersession recess: The Senate adjourned sine die on 12/20/01. The second session of the 107th Congress convened 01/23/02. |
34 |
9 |
|
|
Intrasession recesses during the 107th Congress, 2nd session |
|||
|
01/29/02 |
02/04/02 |
6 |
0 |
|
02/15/02 |
02/25/02 |
10 |
0 |
|
03/22/02 |
04/08/02 |
17 |
5 |
|
05/23/02 |
06/03/02 |
11 |
0 |
|
06/28/02 |
07/08/02 |
10 |
0 |
|
08/01/02 |
09/03/02 |
33 |
7 |
|
Intersession recess: The Senate adjourned sine die on 11/20/02. The first session of the 108th Congress convened on 01/07/03. |
48 |
1 |
|
|
Intrasession recesses during the 108th Congress, 1st session |
|||
|
02/14/03 |
02/24/03 |
10 |
0 |
|
04/11/03 |
04/28/03 |
17 |
11 |
|
05/23/03 |
06/02/03 |
10 |
0 |
|
06/27/03 |
07/07/03 |
10 |
0 |
|
08/01/03 |
09/02/03 |
32 |
15 |
|
10/03/03 |
10/14/03 |
11 |
0 |
|
11/25/03 |
12/09/03 |
14 |
0 |
|
Intersession recess: The Senate adjourned sine die on 12/09/03. The second session of the 108th Congress convened 01/20/04. |
42 |
13 |
|
|
Intrasession recesses during the 108th Congress, 2nd session |
|||
|
02/12/04 |
02/23/04 |
11 |
1 |
|
03/12/04 |
03/22/04 |
10 |
0 |
|
04/08/04 |
04/19/04 |
11 |
4 |
|
05/21/04 |
06/01/04 |
11 |
12 |
|
06/09/04 |
06/14/04 |
5 |
0 |
|
06/25/04 |
07/06/04 |
11 |
4 |
|
07/22/04 |
09/07/04 |
47 |
20 |
|
10/11/04 |
11/16/04 |
36 |
2 |
|
11/24/04 |
12/07/04 |
13 |
0 |
|
Intersession recess: The Senate adjourned sine die on 12/08/04. The first session of the 109th Congress convened on 01/04/05. |
27 |
1 |
|
|
Intrasession recesses during the 109th Congress, 1st session |
|||
|
01/06/05 |
01/20/05 |
14 |
4 |
|
01/26/05 |
01/31/05 |
5 |
0 |
|
02/18/05 |
02/28/05 |
10 |
0 |
|
03/20/05 |
04/04/05 |
15 |
10 |
|
04/29/05 |
05/09/05 |
10 |
0 |
|
05/26/05 |
06/06/05 |
11 |
0 |
|
07/01/05 |
07/11/05 |
10 |
0 |
|
07/29/05 |
09/01/05 |
34 |
7 |
|
09/01/05 |
09/06/05 |
5 |
0 |
|
10/07/05 |
10/17/05 |
10 |
0 |
|
11/18/05 |
12/12/05 |
24 |
0 |
|
Intersession recess: The Senate adjourned sine die on 12/22/05. The second session of the 109th Congress convened on 01/03/06. |
12 |
0 |
|
|
Intrasession recesses during the 109th Congress, 2nd session |
|||
|
01/03/06 |
01/18/06 |
15 |
21 |
|
02/17/06 |
02/27/06 |
10 |
0 |
|
03/16/06 |
03/27/06 |
11 |
0 |
|
04/07/06 |
04/24/06 |
17 |
8 |
|
05/26/06 |
06/05/06 |
10 |
0 |
|
06/29/06 |
07/10/06 |
11 |
0 |
|
08/04/06 |
09/05/06 |
32 |
3 |
|
09/30/06 |
11/09/06 |
40 |
2 |
|
11/16/06 |
12/04/06 |
18 |
0 |
|
Intersession recess: The Senate adjourned sine die on 12/09/06. The first session of the 110th Congress convened on 01/04/07. |
26 |
6 |
|
|
Intrasession recesses during the 110th Congress, 1st session |
|||
|
02/17/07 |
02/26/07 |
9 |
0 |
|
03/29/07 |
04/10/07 |
12 |
4 |
|
05/25/07 |
06/04/07 |
10 |
0 |
|
06/29/07 |
07/09/07 |
10 |
0 |
|
08/03/07 |
09/04/07 |
32 |
0 |
|
10/05/07 |
10/15/07 |
10 |
0 |
|
Intersession recess: The Senate adjourned sine die on 12/31/07. The second session of the 110th Congress convened on 01/03/08. |
3 |
0 |
|
|
Intrasession recesses during the 110th Congress, 2nd session (None) |
|||
|
Intersession recess: The Senate adjourned sine die on 01/02/09. The first session of the 111th Congress convened on 01/06/09. |
4 |
0 |
|
|
Intrasession recesses during the 111th Congress, 1st session, 01/06/09–01/20/09 (None) |
|||
Source: Table created by the Congressional Research Service using data from the Congressional Record.
Note: For the purposes of determining the length of an intrasession recess for inclusion in this table, Sundays were not counted. Under congressional precedents, Sunday is considered a "dies non," or a day on which Congress is not expected to meet, for purposes of determining whether Congress has adjourned for "not more than three days."
a. The number of days adjourned was counted starting on the first calendar day after an adjournment and ending on the day of reconvening, including in the count the day the Senate reconvened. This is consistent with the House practice for counting recess days for the purposes of meeting congressional adjournment requirements in the Constitution ("Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days …." Art. I, § 5, cl. 4). Under House precedents, "The House of Representatives in adjourning for not more than three days must take into the count either the day of adjourning or the day of the meeting, and Sunday is not taken into account in making this computation" U.S. Congress, House, Constitution, Jefferson's Manual and Rules of the House of Representatives of the United States, One Hundred Tenth Congress, 109th Cong., 2nd sess., H.Doc. 109-157 (Washington: GPO, 2007), p. 37. Senate practice appears to be consistent with this approach (Floyd M. Riddick and Alan S. Frumin, Riddick's Senate Procedure: Precedents and Practices, 101st Cong., 2nd sess., S.Doc. 101-28, (Washington: GPO, 1992), pp. 15-16). Inasmuch as it has been argued (see text) that the periods during which the President could make recess appointments might be those in which the Senate is in recess pursuant to the constitutional provision just quoted, it appears that this method of calculating recess days would provide a relevant measure of recess length in the context of discussions of recess appointments. Other methods might be used in other contexts. For example, a method in which neither the day of adjournment nor the day of reconvening were counted has been used elsewhere, including in earlier versions of this report. This method takes into account that the Senate could act on nominations on either of these days, obviating the need for a recess appointment.
Table 4. Recess Appointments to Full-Time Positions by President George W. Bush
(Intrasession appointments bolded)
|
Recess appointee |
Position |
Appointment date |
|
Peter J. Hurtgen |
Member (designated Chair), National Labor Relations Board |
8/31/2001 |
|
John Magaw |
Under Secretary—Security, Department of Transportation |
1/7/2002 |
|
Otto J. Reich |
Assistant Secretary—Western Hemisphere Affairs, Department of State |
1/11/2002 |
|
Eugene Scalia |
Solicitor, Department of Labor |
1/11/2002 |
|
Michael J. Bartlett |
Member, National Labor Relations Board |
1/22/2002 |
|
William B. Cowen |
Member, National Labor Relations Board |
1/22/2002 |
|
Cynthia A. Glassman |
Member, Securities and Exchange Commission |
1/22/2002 |
|
Isaac C. Hunt Jr. |
Member, Securities and Exchange Commission |
1/22/2002 |
|
JoAnn Johnson |
Board Member, National Credit Union Administration |
1/22/2002 |
|
Deborah Matz |
Board Member, National Credit Union Administration |
1/22/2002 |
|
Emil H. Frankel |
Assistant Secretary—Transportation Policy, Department of Transportation |
3/29/2002 |
|
Gerald Reynolds |
Assistant Secretary—Civil Rights, Department of Education |
3/29/2002 |
|
Dennis L. Schornack |
Commissioner on the Part of the United States, International Joint Commission, United States and Canada |
3/29/2002 |
|
Jeffrey Shane |
Associate Deputy Secretary, Department of Transportation |
3/29/2002 |
|
Michael E. Toner |
Member, Federal Election Commission |
3/29/2002 |
|
Thomas C. Dorr |
Under Secretary—Rural Development, Department of Agriculture |
8/6/2002 |
|
Tony Hammond |
Commissioner, Postal Rate Commission |
8/6/2002 |
|
Susanne T. Marshall |
Chair, Merit Systems Protection Board |
8/6/2002 |
|
W. Scott Railton |
Member (designated Chair), Occupational Safety and Health Review Commission |
8/6/2002 |
|
Ellen L. Weintraub |
Member, Federal Election Commission |
12/6/2002 |
|
Naomi C. Earp |
Member (designated Vice Chair), Equal Employment Opportunity Commission |
4/22/2003 |
|
Peter Eide |
General Counsel, Federal Labor Relations Authority |
4/22/2003 |
|
April H. Foley |
Board Member, Export-Import Bank |
4/22/2003 |
|
R. Bruce Matthews |
Member, Defense Nuclear Facilities Safety Board |
4/22/2003 |
|
Neil McPhie |
Member (designated Vice Chair), Merit Systems Protection Board |
4/22/2003 |
|
Stanley C. Suboleski |
Member, Federal Mine Health and Safety Review Commission |
4/22/2003 |
|
A. Paul Anderson |
Commissioner, Federal Maritime Commission |
8/22/2003 |
|
Charlotte A. Lane |
Member, United States International Trade Commission |
8/22/2003 |
|
Daniel Pearson |
Member, United States International Trade Commission |
8/22/2003 |
|
John P. Woodley Jr. |
Assistant Secretary—Civil Works, Department of the Army |
8/22/2003 |
|
Clark K. Ervin |
Inspector General, Department of Homeland Security |
12/23/2003 |
|
Robert Lerner |
Commissioner—Education Statistics, Department of Education |
12/23/2003 |
|
Ronald E. Meisburg |
Member, National Labor Relations Board |
12/23/2003 |
|
Raymond Simon |
Assistant Secretary—Elementary and Secondary Education, Department of Education |
12/23/2003 |
|
Charles W. Pickering |
Judge, U.S. Court of Appeals for the Fifth Circuit |
1/16/2004 |
|
William H. Pryor |
Judge, U.S. Court of Appeals for the Eleventh Circuit |
2/20/2004 |
|
Linda M. Combs |
Assistant Secretary—Budget and Programs, Department of Transportation |
4/16/2004 |
|
Linda M. Conlin |
Board Member, Export-Import Bank |
4/16/2004 |
|
Eugene Hickok |
Deputy Secretary, Department of Education |
4/16/2004 |
|
Edward R. McPherson |
Under Secretary, Department of Education |
4/18/2004 |
|
Romolo A. Bernardi |
Deputy Secretary, Department of Housing and Urban Development |
5/28/2004 |
|
Charles Johnson |
Chief Financial Officer, Environmental Protection Agency |
5/28/2004 |
|
Ann R. Klee |
Assistant Administrator (General Counsel), Environmental Protection Agency |
5/28/2004 |
|
Cathy M. MacFarlane |
Assistant Secretary—Public Affairs, Department of Housing and Urban Development |
5/28/2004 |
|
Dennis C. Shea |
Assistant Secretary—Policy Development and Research, Department of Housing and Urban Development |
5/28/2004 |
|
Deborah A. Spagnoli |
Commissioner, U.S. Parole Commission |
5/28/2004 |
|
Kirk Van Tine |
Deputy Secretary, Department of Transportation |
5/28/2004 |
|
Sue Ellen Wooldridge |
Solicitor, Department of the Interior |
5/28/2004 |
|
Michael D. Gallagher |
Assistant Secretary—Communications and Information, Department of Commerce |
7/2/2004 |
|
Theodore W. Kassinger |
Deputy Secretary, Department of Commerce |
7/2/2004 |
|
Carin M. Barth |
Chief Financial Officer, Department of Housing and Urban Development |
8/2/2004 |
|
Jonathan W. Dudas |
Under Secretary—Intellectual Property/ Director—U.S. Patent and Trademark Office, Department of Commerce |
8/2/2004 |
|
Albert A. Frink Jr. |
Assistant Secretary—Manufacturing and Services, Department of Commerce |
8/2/2004 |
|
Susan J. Grant |
Chief Financial Officer, Department of Energy |
8/2/2004 |
|
Ricardo H. Hinojosa |
Chair, United States Sentencing Commission |
8/2/2004 |
|
Stephen L. Johnson |
Deputy Administrator, Environmental Protection Agency |
8/2/2004 |
|
James R. Kunder |
Assistant Administrator—Bureau for Asia and the Near East, U.S. Agency for International Development |
8/2/2004 |
|
John D. Rood |
Ambassador, Commonwealth of the Bahamas |
8/2/2004 |
|
Charles G. Untermeyer |
Ambassador, State of Qatar |
8/2/2004 |
|
Gary L. Visscher |
Member, Chemical Safety and Hazard Investigation Board |
8/2/2004 |
|
Aldona Wos |
Ambassador, Republic of Estonia |
8/2/2004 |
|
Deborah P. Majoras |
Commissioner (designated Chair), Federal Trade Commission |
8/16/2004 |
|
Jon D. Leibowitz |
Commissioner, Federal Trade Commission |
9/1/2004 |
|
Ronald Rosenfeld |
Director (designated Chair), Federal Housing Finance Board |
12/14/2004 |
|
Gregory B. Jaczko |
Member, Nuclear Regulatory Commission |
1/19/2005 |
|
Peter B. Lyons |
Member, Nuclear Regulatory Commission |
1/19/2005 |
|
Michael W. Wynne |
Under Secretary—Acquisition, Technology and Logistics, Department of Defense |
4/1/2005 |
|
John R. Bolton |
Representative of the U.S. to the United Nations |
8/1/2005 |
|
Peter C. W. Flory |
Assistant Secretary—International Security Policy, Department of Defense |
8/2/2005 |
|
Eric S. Edelman |
Under Secretary—Policy, Department of Defense |
8/9/2005 |
|
Alice S. Fisher |
Assistant Attorney General—Criminal Division, Department of Justice |
8/31/2005 |
|
Peter Schaumber |
Member, National Labor Relations Board |
8/31/2005 |
|
Gordon England |
Deputy Secretary of Defense |
1/4/2006 |
|
Tracy A. Henke |
Executive Director—Office of State and Local Government Coordination and Preparedness, Department of Homeland Security |
1/4/2006 |
|
Peter N. Kirsanow |
Member, National Labor Relations Board |
1/4/2006 |
|
Robert D. Lenhard |
Member, Federal Election Commission |
1/4/2006 |
|
Ronald E. Meisburg |
General Counsel, National Labor Relations Board |
1/4/2006 |
|
Julie L. Myers |
Assistant Secretary—Bureau of Immigration and Customs Enforcement, Department of Homeland Security |
1/4/2006 |
|
Benjamin A. Powell |
General Counsel, Office of the Director of National Intelligence |
1/4/2006 |
|
Arthur F. Rosenfeld |
Director, Federal Mediation and Conciliation Service |
1/4/2006 |
|
Ellen R. Sauerbrey |
Assistant Secretary—Population, Refugees, and Migration, Department of State |
1/4/2006 |
|
Dorrance Smith |
Assistant Secretary—Public Affairs, Department of Defense |
1/4/2006 |
|
Hans von Spakovsky |
Member, Federal Election Commission |
1/4/2006 |
|
Steven T. Walther |
Member, Federal Election Commission |
1/4/2006 |
|
Steven K. Mullins |
U.S. Attorney, District of South Dakota |
1/9/2006 |
|
C. Boyden Gray |
Ambassador, European Union |
1/17/2006 |
|
Dennis P. Walsh |
Member, National Labor Relations Board |
1/17/2006 |
|
Bertha K. Madras |
Deputy Director—Demand Reduction, Office of National Drug Control Policy |
4/19/2006 |
|
James F. X. O'Gara |
Deputy Director—Supply Reduction, Office of National Drug Control Policy |
4/19/2006 |
|
Paul DeCamp |
Administrator—Wage and Hour Division, Department of Labor |
8/31/2006 |
|
Michael F. Duffy |
Member (designated Chair), Federal Mine Safety and Health Review Commission |
8/31/2006 |
|
Daniel Meron |
General Counsel, Department of Health and Human Services |
8/31/2006 |
|
Richard E. Stickler |
Assistant Secretary - Mine Safety and Health Administration, Department of Labor |
10/19/2006 |
|
John R. Steer |
Member (designated Vice Chair), United States Sentencing Commission |
12/12/2006 |
|
Wayne C. Beyer |
Member, Federal Labor Relations Authority |
12/20/2006 |
|
Andrew G. Biggs |
Deputy Commissioner, Social Security Administration |
04/04/2007 |
|
Susan E. Dudley |
Administrator - Office of Information and Regulatory Affairs, Office of Management and Budget |
04/04/2007 |
|
Sam Fox |
Ambassador, Belgium |
04/04/2007 |
|
Carol W. Pope |
Member, Federal Labor Relations Authority |
04/04/2007 |
Sources: Table created by the Congressional Research Service using data from various volumes of the Weekly Compilation of Presidential Documents; the Senate nominations database of the Legislative Information System, at http://www.congress.gov/nomis/; news releases from the Bush Administration White House website, now at http://georgewbush-whitehouse.archives.gov/; and telephone conversations with the White House Executive Clerk's Office.
Note: Entries in bold are recess appointments that were made during a recess within a session of Congress (intrasession recess appointments). All other entries are recess appointments that were made during a recess between Congresses or between sessions of Congress (intersession recess appointments).
Table 5. Recess Appointments to Part-Time Positions by President George W. Bush
(Intrasession appointments bolded)
|
Recess appointee |
Position |
Appointment date |
|
Albert Casey |
Governor, United States Postal Service |
8/6/2002 |
|
Thomas C. Dorr |
Board Member, Commodity Credit Corporation |
8/6/2002 |
|
Cheryl F. Halpern |
Board Member, Corporation for Public Broadcasting |
8/6/2002 |
|
Lillian R. BeVier |
Board Member, Legal Services Corporation |
4/22/2003 |
|
Thomas A. Fuentes |
Board Member, Legal Services Corporation |
4/22/2003 |
|
James C. Miller III |
Governor, United States Postal Service |
4/22/2003 |
|
William A. Schambra |
Board Member, Corporation for National and Community Service |
4/22/2003 |
|
Donna N. Williams |
Board Member, Corporation for National and Community Service |
4/22/2003 |
|
Ephraim Batambuze |
Board Member, African Development Foundation |
8/22/2003 |
|
David W. Fleming |
Member (public)—Board of Trustees, James Madison Memorial Fellowship Foundation |
8/22/2003 |
|
Jose A. Fourquet |
Board Member, Inter-American Foundation |
8/22/2003 |
|
Adolfo A. Franco |
Board Member (government representative), Inter-American Foundation |
8/22/2003 |
|
Jay P. Greene |
Member (academic)—Board of Trustees, James Madison Memorial Fellowship Foundation |
8/22/2003 |
|
Walter H. Kansteiner |
Board Member, African Development Foundation |
8/22/2003 |
|
Patrick L. McCrory |
Member—Board of Trustees, Harry S. Truman Scholarship Foundation |
8/22/2003 |
|
Roger F. Noriega |
Board Member (government representative), Inter-American Foundation |
8/22/2003 |
|
John R. Petrocik |
Member (academic)—Board of Trustees, James Madison Memorial Fellowship Foundation |
8/22/2003 |
|
Daniel Pipes |
Board Member, United States Institute of Peace |
8/22/2003 |
|
Juanita A. Vasquez-Gardner |
Member—Board of Trustees, Harry S. Truman Scholarship Foundation |
8/22/2003 |
|
Bradley D. Belt |
Member, Social Security Advisory Board |
12/23/2003 |
|
Cynthia Boich |
Board Member, Corporation for National and Community Service |
12/23/2003 |
|
Albert Casey |
Governor, United States Postal Service |
12/23/2003 |
|
Gay Hart Gaines |
Board Member, Corporation for Public Broadcasting |
12/23/2003 |
|
Dorothy A. Johnson |
Board Member, Corporation for National and Community Service |
12/23/2003 |
|
Henry Lozano |
Board Member, Corporation for National and Community Service |
12/23/2003 |
|
Claudia Puig |
Board Member, Corporation for Public Broadcasting |
12/23/2003 |
|
Fayza V. B. Rodman |
Member, Broadcasting Board of Governors |
12/23/2003 |
|
Edward Brehm |
Board Member (designated Chairperson), African Development Foundation |
5/28/2004 |
|
Adam M. Lindemann |
Member, Advisory Board for Cuba Broadcasting |
5/28/2004 |
|
Kiron K. Skinner |
Member, National Security Education Board |
5/28/2004 |
|
Juanita A. Vasquez-Gardner |
Member—Board of Trustees, Harry S. Truman Scholarship Foundation |
5/28/2004 |
|
Floyd Hall |
Member, Reform Board (Amtrak) |
7/2/2004 |
|
Jack E. McGregor |
Member—Advisory Board, Saint Lawrence Seaway Development Corporation |
7/2/2004 |
|
Nadine Hogan |
Board Member (designated Vice Chair [private representative]), Inter-American Foundation |
8/2/2004 |
|
Paul Jones |
Member, Internal Revenue Service Oversight Board |
8/2/2004 |
|
Enrique J. Sosa |
Member, Reform Board (Amtrak) |
8/2/2004 |
|
Jack Vaughn |
Board Member (private representative), Inter-American Foundation |
8/2/2004 |
|
Richard K. Wagner |
Member—Advisory Board, National Institute for Literacy |
8/2/2004 |
|
Scott K. Walker |
Member—Advisory Board, Saint Lawrence Seaway Development Corporation |
8/2/2004 |
|
Roger W. Wallace |
Board Member, (designated Chair [private representative]), Inter-American Foundation |
8/2/2004 |
|
Carolyn L. Gallagher |
Governor, United States Postal Service |
11/3/2004 |
|
Louis J. Giuliano |
Governor, United States Postal Service |
11/3/2004 |
|
Adolfo A. Franco |
Board Member (government representative), Inter-American Foundation |
1/19/2005 |
|
Roger F. Noriega |
Board Member (government representative), Inter-American Foundation |
1/19/2005 |
|
James H. Bilbray |
Member, Defense Base Closure and Realignment Commission |
4/1/2005 |
|
Philip Coyle |
Member, Defense Base Closure and Realignment Commission |
4/1/2005 |
|
Harold W. Gehman Jr. |
Member, Defense Base Closure and Realignment Commission |
4/1/2005 |
|
James V. Hansen |
Member, Defense Base Closure and Realignment Commission |
4/1/2005 |
|
James T. Hill |
Member, Defense Base Closure and Realignment Commission |
4/1/2005 |
|
Lloyd W. Newton |
Member, Defense Base Closure and Realignment Commission |
4/1/2005 |
|
Anthony J. Principi |
Member (designated Chair), Defense Base Closure and Realignment Commission |
4/1/2005 |
|
Samuel K. Skinner |
Member, Defense Base Closure and Realignment Commission |
4/1/2005 |
|
Sue Ellen Turner |
Member, Defense Base Closure and Realignment Commission |
4/1/2005 |
|
John R. Bolton |
Representative of the U.S. in the United Nations Security Council |
8/1/2005 |
|
John R. Bolton |
Representative of the U.S. to Sessions of the United Nations General Assembly |
8/1/2005 |
|
Stephen Goldsmith |
Board Member, Corporation for National and Community Service |
1/4/2006 |
|
Floyd Hall |
Member, Reform Board (Amtrak) |
1/4/2006 |
|
Nadine Hogan |
Board Member (designated Vice Chair [private representative]), Inter-American Foundation |
1/4/2006 |
|
Enrique J. Sosa |
Member, Reform Board (Amtrak) |
1/4/2006 |
|
Roger W. Wallace |
Board Member (designated Chair [private representative]), Inter-American Foundation |
1/4/2006 |
|
John Gardner |
Governor, United States Postal Service |
1/6/2006 |
|
John L. Palmer |
Member, Board of Trustees of the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Trust Fund |
4/19/2006 |
|
John L. Palmer |
Member, Board of Trustees of the Federal Hospital Insurance Trust Fund |
4/19/2006 |
|
John L. Palmer |
Member, Board of Trustees of the Supplementary Medical Insurance Trust Fund |
4/19/2006 |
|
Thomas R. Saving |
Member, Board of Trustees of the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Trust Fund |
4/19/2006 |
|
Thomas R. Saving |
Member, Board of Trustees of the Federal Hospital Insurance Trust Fund |
4/19/2006 |
|
Thomas R. Saving |
Member, Board of Trustees of the Supplementary Medical Insurance Trust Fund |
4/19/2006 |
|
Jeffrey R. Brown |
Member, Social Security Advisory Board |
10/19/2006 |
|
Dabney L. Friedrich |
Member, United States Sentencing Commission |
12/12/2006 |
|
Beryl A. Howell |
Member, United States Sentencing Commission |
12/12/2006 |
|
Warren Bell |
Board Member, Corporation for Public Broadcasting |
12/20/2006 |
|
Mark McKinnon |
Member, Board of Broadcasting Governors |
12/20/2006 |
Sources: Table created by the Congressional Research Service using data from various volumes of the Weekly Compilation of Presidential Documents; the Senate nominations database of the Legislative Information System, at http://www.congress.gov/nomis/; news releases from the Bush Administration White House website, now at http://georgewbush-whitehouse.archives.gov/; and telephone conversations with the White House Executive Clerk's Office.
Note: Entries in bold are recess appointments that were made during a recess within a session of Congress (intrasession recess appointments). All other entries are recess appointments that were made during a recess between Congresses or between sessions of Congress (intersession recess appointments).
| 1. |
Art. 2, § 2, cl. 2. |
| 2. |
"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." Art. 2, § 2, cl. 3. |
| 3. |
As discussed in detail later in this report, each Congress covers a two-year period, generally composed of two sessions. |
| 4. |
An opinion by Attorney General William Wirt in 1823 concerning the meaning of the word "happen" in the clause provides one example. (The clause states, "[t]he 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." Art. 2, § 2, cl. 3.) In part, he stated, "The substantial purpose of the constitution was to keep these offices filled; and the powers adequate to this purpose were intended to be conveyed." 1 Op. A.G. at 632. |
| 5. |
U.S. Congress, Joint Committee on Printing, 2007-2008 Official Congressional Directory 110th Congress, S. Pub. 110-13, 110th Cong. (Washington: GPO, 2007), pp. 516-520. |
| 6. |
Information was obtained, during the Bush presidency, from news releases from the White House website, now at http://georgewbush-whitehouse.archives.gov/; the White House Executive Clerk; and the Legislative Information System (LIS) nominations database, at http://www.congress.gov/nomis/. |
| 7. |
For information on recess appointments generally, see CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by [author name scrubbed]. For information on related legal issues, see CRS Report RL32971, Judicial Recess Appointments: A Legal Overview, and CRS Report RL33009, Recess Appointments: A Legal Overview, both by T.J. Halstead. |
| 8. |
Art. 2, § 2, cl. 3. |
| 9. |
20th Amend., § 2. |
| 10. |
See, for example, Michael B. Rappaport, "The Original Meaning of the Recess Appointments Clause," UCLA Law Review, vol. 52 (June 2005), p. 1487. |
| 11. |
See, for example, Edward A. Hartnett, "Recess Appointments of Article III Judges: Three Constitutional Questions," Cardozo Law Review, vol. 26 (January 2005), p. 377. |
| 12. |
The chair and three vice chairs are full-time positions; the remaining member slots are part-time positions. |
| 13. |
The remaining 6 of the 171 recess appointees were not nominated to the positions to which they were appointed. |
| 14. |
Beryl A. Howell and John R. Steer were recess-appointed to be members of the United States Sentencing Commission six days after their initial nominations to those positions. (Steer was also designated as the organization's vice chair.) Charles W. Pickering was recess-appointed to be a judge on the U.S. Court of Appeals for the Fifth Circuit 966 days after his first nomination to that position. |
| 15. |
Two measures of central tendency are presented here: the mean, or average, and the median. The mean is the more familiar measure, and it was calculated by adding together the elapsed times for all of the cases and dividing the resulting sum by the total number of cases (162 — each appointment that had been preceded by a nomination is a case in this instance). The median is the middle number in a set of observations (or, in this case, because of an even number of observations, the average of the two middle numbers). In data sets, such as this one, where the data are skewed because of a limited number of extreme values, the median is often considered to be the more accurate of the two measures of central tendency. |
| 16. |
U.S. Congress, Joint Committee on Printing, 2007-2008 Official Congressional Directory 110th Congress, S. Pub. 110-13, 110th Cong. (Washington: GPO), pp. 516-532. |
| 17. |
Mackie v. Clinton, Civil Action 93-0032-LFO, July 2, 1993, p. 25. The constitutional provision to which the brief refers states, "Neither House, during the Session of the Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting" (Art. I, § 5, cl. 4). |
| 18. |
President Ronald W. Reagan recess appointed John C. Miller to be a member of the National Labor Relations Board on December 23, 1982, during a recess that began that day and lasted until the Senate reconvened on January 3, 1983. (U.S. President (Reagan), "Digest of Other White House Announcements," Weekly Compilation of Presidential Documents, vol. 18 (Dec. 23, 1982), p. 1662.) |
| 19. |
On May 31, 1996, President William J. Clinton recess appointed Johnny H. Hayes to be a member of the Tennessee Valley Authority. (U.S. President (Clinton), "Digest of Other White House Announcements," Weekly Compilation of Presidential Documents, vol. 32 (May 31, 1996), p. 980.) The Senate had adjourned on May 24, 1996, and reconvened on June 3. |
| 20. |
Although, as described here, the Senate Majority Leader initially indicated that the use of pro forma sessions was intended to prevent the President from making recess appointments, on at least one other occasion, he provided another reason for using these sessions. On September 17, 2008, he announced, with regard to the Senate, "We are going to have to get some committee hearings underway, which is why we are not going to adjourn. We will be in pro forma session so committees can still meet, though we won't have any activities here on the floor as relates to these markets." (Sen. Harry Reid, "The Economy," remarks in the Senate, Congressional Record, daily edition, vol. 154 (Sept. 17, 2008), p. S8907.) |
| 21. |
Sen. Harry Reid, "Recess Appointments," remarks in the Senate, Congressional Record, daily edition, vol. 153 (Nov. 16, 2007), p. S14609. |
| 22. |
A pro forma session is a short meeting of the House or Senate during which it is understood that no business will be conducted. |
| 23. |
Sen. Harry Reid, "Order of Business," remarks in the Senate, Congressional Record, daily edition, vol. 153 (Dec. 19, 2007), p. S15980. |
| 24. |
Sen. Harry Reid, "Order of Procedure," remarks in the Senate, Congressional Record, daily edition, vol. 153 (Dec. 19, 2007), p. S16069. |
| 25. |
See Sen. Harry Reid, "Order of Procedure," remarks in the Senate, Congressional Record, daily edition, vol. 154 (Feb. 14, 2008), p. S1085; Sen. Harry Reid, "Order of Procedure," remarks in the Senate, Congressional Record, daily edition, vol. 154 (Mar. 14, 2008), p. S219; Sen. Harry Reid, "Orders of Procedure," remarks in the Senate, Congressional Record, daily edition, vol. 154 (May 22, 2008), p. S4849; Sen. Carl Levin, "Orders for Monday, June 30, and Monday July 7, 2008," remarks in the Senate, Congressional Record, daily edition, vol. 154 (June 27, 2008), p. S6336; Sen. Harry Reid, "Order for Pro Forma Sessions," remarks in the Senate, Congressional Record, daily edition, vol. 154 (Aug. 1, 2008), p. S8077; Sen. Carl Levin, "Orders for Monday, October 6, 2008, through Monday, November 17, 2008," remarks in the Senate, Congressional Record, daily edition, vol. 154 (Oct. 2, 2008), p. S10504; Sen. Byron L. Dorgan, "Orders for Monday, November 24, 2008, through Monday, December 8, 2008," remarks in the Senate, Congressional Record, daily edition, vol. 154 (Nov. 20, 2008), p. S10776; and Sen. Richard J. Durbin, "Orders for Friday, December 12, 2008, through Friday, January 2, 2009," remarks in the Senate, Congressional Record, daily edition, vol. 154 (Dec. 11, 2008), p. S10958. |