Q&A of the Day – The History of Recess Appointments
Each day I feature a listener question sent by one of these methods.
Email: brianmudd@iheartmedia.com
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Today’s Entry: Brian- thanks for the perspective on recess appointments. That’s helpful to use with the naysayers. You mentioned Biden has recess appointments right now. Can you please share that info so I can share it with others?
Bottom Line: As noted, in Monday’s Q&A I addressed what recess appointments are while also highlighting that recess appointments are as old as the presidency, with George Washington making the first recess appointments within his first year in office. As I noted: While many in the media are suggesting Trump’s suggestion that his most controversial cabinet members should be allowed to be seated during a senate recess, there’s never been a president who has served at least one full term who hasn’t used recess appointments and the practice has been in use since the first year of our country’s history.
Currently President Biden’s cabinet includes two recess appointments. Julie Su is the Acting Secretary of Labor and Adrianne Todman is the Acting Secretary of Housing and Urban Development. There’s a good chance you’ve never heard their names. There’s a good chance you were completely unaware that two of President Biden’s current cabinet members were recess appointments. This speaks to the double standard that’s applied to President-elect Donald Trump’s nominees in comparison to President Biden’s nominees. I’ve often said that the most pervasive form of bias in news media is the omission of information. This is yet another example. But recess appointments haven’t only been used for cabinet positions. Other positions requiring senate confirmation have also been appointed using recess appointments as well, a la federal judges.
The are two types of recesses:
- Intersession: A recess between congressional sessions
- Intrasession: A recess during a session of Congress
In 2014 the United States Supreme Court ruled that intrasession recess appointments were legal provided that they are at least 10 days long. That timeline was established to crack down on potential abuse of recess appointments. As we look at recess appointments by president since 1980, there’s quite the story that’s told in the process.
Recess appointments by president:
- Ronald Reagan: 232
- George H.W. Bush: 78
- Bill Clinton: 139
- George W. Bush: 171
- Obama: 32
- Donald Trump: 3
- Joe Biden: 2
First, one of the most popular presidents in American history, Ronald Reagan, is the president who issued the most recess appointments. This was a byproduct of Democrats controlling the senate for the entirety of his term as president. Second, it’s clear that the Supreme Court’s 2014 ruling, in the middle of Barrack Obama’s administration, has significantly cut down on the number of recess appointments that have been made over the past ten years.
With that said, President-elect's Trump’s position, that he should be allowed the opportunity to make temporary recess appointments to his cabinet if the senate won’t vote confirm his nominations in a timely manner, has clear historical precedent behind it. For those, often in news media, expressing outrage at the assertion; they are clearly engaged in selective reporting and selective outrage. How hypocritical does one have to be to suggest that the incoming president of the United States shouldn’t have two of his cabinet positions filled through recess appointments, when the current president of the United States has two active cabinet members who are recess appointments? As always there are two sides to stories and one side to facts. These are the facts. But speaking of facts...
Did you know that it’s not Joe Biden, nor was it Donald Trump or Ronald Reagan, that had the biggest impact with recess appointments but rather Dwight D. Eisenhower and George Washington? I’d already mentioned Washington’s use of recess appointments starting with his first year in office, but there was one recess appointment in particular that was the most effectual. He appointed the chief justice of the United States Supreme Court through a recess appointment. In fact, all told ten Supreme Court justices have been seated through recess appointments with President Dwight Eisenhower having made two. Could you imagine the reporting today if Donald Trump were to suggest he should be able to seat a Supreme Court justice through a recess appointment?
Hopefully this deeper dive into recess appointment history is helpful. Once again, we have a situation in which it’s not Trump’s request for the use of recess appointments (if necessary) that is outrageous...it’s the media’s one-sided coverage of his request without context that is.