By Elana Schor - 04/05/07 12:50 PM EDT
Bush installed three disputed picks during the Senate’s weeklong recess: Sam Fox, whose $50,000 donation to the 527 group Swift Boat Veterans for Truth had doomed his prospects with Democrats, as ambassador to Belgium; Susan Dudley, a critic of government rulemaking in principle, as White House regulatory czar; and Andrew Biggs, whom Senate Finance Chairman Max Baucus (D-Mont.) had pledged to reject due to his views on Social Security privatization, as deputy commissioner of Social Security.
Democrats and advocacy groups roundly condemned the appointments, with Fox opponents including Sens. Barack Obama (D-Ill.) and John Kerry (D-Mass.) calling Bush’s Senate sidestep “disappointing” and “sad.” Americans United for Change, which began its grassroots lobbying work blocking the Bush Social Security plan in 2005, described Biggs’s appointment as “the equivalent of flipping the bird to the Senate Finance Committee and its chairman and the American people.”
Sen. Chris Dodd (D-Conn.) said in a statement that he plans to ask the Government Accountability Office (GAO) to investigate the legality of the Fox appointment, which like the other two nominations will expire at the end of the 110th Congress.
“This is underhanded and an abuse of executive authority — sadly, this behavior has become the hallmark of this administration,” Dodd said.
The three recess appointments made this week were the first on record during a Senate recess of less than 10 days, according to existing records. Yet past rulings by GAO, the Congressional Research Service (CRS) and the courts show a history of broad interpretation of the president’s recess appointment power.
Bush’s 2004 recess appointment of federal judicial nominee William Pryor, who faced a probable Democratic filibuster, was upheld by the 11th Circuit Court of Appeals in October of that year, and the Supreme Court declined to hear a challenge to Pryor several months later. Pryor, like Fox, would almost certainly have failed to win Senate confirmation, but the rarity of judicial recess appointments compared with executive ones distinguished the Pryor case from this week’s three.
Justice John Paul Stevens left the door open in 2005 for a future Supreme Court ruling on recess appointments, although his choice of words narrowly referenced “vacancies, such as the vacancies on this [Supreme] Court.”
CRS reported in 2005 that recess appointments, while intended as a practical means to preserve executive-branch effectiveness, have “also been employed by presidents for political purposes throughout the history of the Republic.” Recess appointees may be subject to limits or revocation of pay for their positions, CRS noted, under an appropriations rider first passed to check President Lincoln in 1863.
A GAO ruling from 1980 even found that recess appointments were feasible for entirely new positions that technically did not experience a vacancy from a departed nominee.
Responding to a request by Rep. John Dingell (D-Mich.), now House Energy and Commerce Committee chairman, on legislative language restricting newly created positions from being filled by recess appointment, GAO questioned “whether the president’s power to make recess appointments could be restricted in the manner suggested.”