- The Washington Times - Thursday, November 28, 2019

Ronald Reagan made nearly 250 recess appointments during his time in office. Jimmy Carter and George H.W. Bush made dozens each. George W. Bush made 171, and Barack Obama notched 32.

President Trump, meanwhile, stands at a big zero.

No other president has gone this deep into an administration without making a recess appointment. In fact, he is poised to become the first president never to get one — save William Henry Harrison, who died just one month into office.

Recess appointments are one of the more arcane presidential powers, but analysts said the breakdown of the process is emblematic of a broken Washington.

“It’s a very important presidential power,” said Hans von Spakovsky, a legal scholar at the conservative Heritage Foundation who was the recipient of a recess appointment to the Federal Election Commission in 2006.

“The whole point of that authority was to be able to temporarily fill important positions in the government. If anything, that’s gotten even more important since our founding because of the huge increase of the size of the federal government, and it’s not a good thing to have all these empty slots.”

DOCUMENT: List of recent presidential recess appointments

It has been nearly 2,900 days since the last recess appointment, dating back seven years to the Obama administration. That is by far the longest stretch in history, according to an analysis by The Washington Times.

While there are no complete records of all recess appointments, The Times scoured Senate journals and judicial records and found that every president save Mr. Trump and Harrison made appointments, and usually made them early and often during their tenures.

They included Cabinet officials, military officers, revenue posts, territorial governors and even Supreme Court justices.

The Constitution places the recess power in Article II, which lays out the role of the executive branch, assigning the president “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.”

That was the key trade-off: The president could fill vacancies, but the appointees’ terms were limited unless the Senate voted to approve them.

In the early years of the republic, when Congress was frequently out of session for a majority of each year, it was standard for a president to begin his tenure with a slew of recess appointments for posts that opened during the transition.

Each new president would notify the Senate of his actions and ask the upper chamber to confirm the person once it was back in session. In nearly every case, the Senate did so.

Things began to change early in the last century, when Congress was in session more regularly.

“Once air conditioning was invented, it followed Congress would not ever leave town, and that original argument probably doesn’t apply anymore,” said Peter M. Shane, a law professor at Ohio State University.

Instead, appointments were increasingly used to install people over the objection of the Senate.

That was the case for Mr. von Spakovsky. Democrats who wanted to keep him from the FEC placed a “hold” on him.

Mr. Bush used the power to install judges facing unprecedented Democratic filibusters, as did President Clinton when he had to deal with a Republican-led Senate.

Mr. Obama used the power to force people into key regulatory agency posts over Republican filibuster threats.

But circumventing Congress dates back long before that.

In 1903, President Theodore Roosevelt wanted to make a slew of appointments, including a black man as collector of revenue at the port of Charleston, South Carolina. The Senate defeated that appointment, so Roosevelt sought to use his recess powers to name him, along with more than 160 military officers.

Congress began to fight back about a decade ago.

That was when then-Senate Majority Leader Harry Reid, Nevada Democrat, devised a plan to keep the Senate “in session” by meeting every three days, even though no business was conducted. Without a recess, the president — at that time George W. Bush — couldn’t use his appointment powers.

When Mr. Obama took office, Mr. Reid lifted his blockade, allowing the president to make appointments again.

That changed in 2011 after Republicans won control of the House. Flexing a different part of the Constitution, House Republicans used the same three-day pro forma session strategy. Because the House remained in session, the Senate had to as well, thus denying Mr. Obama his recess powers.

Fed up, Mr. Obama in 2012 made a spate of appointments anyway, including to the National Labor Relations Board. He declared that the do-nothing sessions didn’t count and so Congress was in recess.

The Supreme Court rejected that argument. It ruled 9-0 in the 2014 case NLRB v. Noel Canning that the Senate was in session and that any recess of fewer than 10 days was generally too short to trigger the president’s powers.

“Given the tools of self-protection that Congress has, the Noel Canning decision pretty much enables Congress to stop recess appointments as a practice if they don’t believe recess appointments serve any purpose from a congressional point of view,” Mr. Shane said.

In theory, Mr. Trump should have been able to make appointments during his first two years. Republicans controlled both the House and Senate and should have been able to force Congress into recess.

Republican Senate aides at the time said that forcing the chamber to vote over Democrats’ objections was too much hassle.

The issue became moot when Democrats took control of the House early this year with the ability to block the Senate from going into recess.

The White House doesn’t seem bothered.

Mr. Trump prefers his team to serve in acting capacities, giving him more flexibility to yank their leashes when he wants and to kick them out seamlessly when they displease him.

That has led to bizarre situations such as the current status at the Homeland Security Department, where seven of the top 11 jobs are held by people in “acting” capacities. Indeed, the department secretary, the deputy secretary and all of the chiefs of the three immigration agencies are acting in the roles.

“No president, I think, in recent history, if ever, has made more assiduous use of the Federal Vacancies Reform Act than the current president,” Mr. Shane said. “Trump has said, ‘I like actings,’ so if you can keep the government staffed with actings and you’re satisfied with the resulting performance, that would also reduce the need for recess appointments.”

Mr. von Spakovsky, though, said Senate Democrats have hindered confirmations of Mr. Trump’s nominees.

“He’s acting in a way to make up for the problems caused by the slowdown being caused by Democrats in the Senate,” he said. “If he could make recess appointments, he wouldn’t have to be put through that other effort.”

Analysts debate whether the recess appointment has become a constitutional anachronism. But some are wondering whether Mr. Trump might try to use that power heading into the last year of his term.

Even if Congress never goes into a full recess anymore, it still divides each year into a separate session — and on Jan. 3, both chambers will gavel out the first session of the 116th Congress and gavel in the second session.

The Supreme Court was silent on that type of recess in its Noel Canning ruling.

There is precedent for using the intersession period to make recess appointments. Roosevelt used the tactic in his 1903 power play.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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