The power of the presidency ebbs and flows: popular presidents during times of national calamity seem to be able to do almost anything they want. Other times, the nation’s chief executive must practically beg Congress to support his national agenda. There are, however, a few areas where every president can exercise almost absolute power, such as making a recess appointment to high federal office without Senate oversight. Of particular importance among these appointments are federal judgeships because judges play a major role in policy-making.
This article examines the constitutional, legislative, and traditional authority of the President to make recess appointments. The second section discusses the background of the current debate by framing the issue in the context of recent controversial appointments. The third section examines the constitutional language and common law interpretation of the President’s authority. The fourth section looks at appointment power legislation passed by Congress. The fifth section provides parliamentary and legislative recommendations for Congress to act upon to keep its authority. The article concludes with a rational for a limited presidential recess appointment power.
McNerney, Michael. "The Limits of Presidential Recess Appointment Power." American University Legislation and Policy Roundtable, Spring 2009, 68-88.