Recess Appointments Made by President George W. Bush

Recess Appointments Made by President George W. Bush

Recess Appointments Made by President George W. Bush

April 15, 2009 (RL33310)

Contents

Tables

Table 1. Recess Appointments by President George W. Bush to Full- and Part-Time Positions

Table 2. Summary Information Concerning Recess Appointments by President George W. Bush

Table 3. Number of Recess Appointments During Senate Intersession Recesses and Intrasession Recesses of Four or More Days, January 20, 2001-January 20, 2009

Table 4. Recess Appointments to Full-Time Positions by President George W. Bush

Table 5. Recess Appointments to Part-Time Positions by President George W. Bush

Summary

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.

Recess Appointments Made by President George W. Bush

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).

Footnotes

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.