President Obama used his recess appointment power to make Richard Cordray head of the Consumer Financial Protection Bureau on Wednesday, after Senate Republicans refused to allow a vote on the matter. When did presidents start using the recess appointment power to install people they knew the Senate would reject?
More than two centuries ago. After he lost the 1800 election, but before his successor Thomas Jefferson took office, President John Adams kept the Senate in session long enough to approve the incoming Cabinet without delay.* (George Washington had extended the same courtesy to Adams during the first presidential transition.) Jefferson submitted several nominees, but withheld the nomination of Albert Gallatin for Treasury secretary, on the grounds that the holdover Congress was controlled by Federalists, who had ejected Gallatin from the Senate a decade earlier over a citizenship dispute. Fearing a nasty confirmation battle, Jefferson appointed Gallatin during the recess, and submitted him for confirmation when a Republican-controlled Senate convened eight months later. Today, a statue of Gallatin stands in front of the Treasury building.
The authority to make recess appointments, and controversies surrounding it, are nearly as old as the United States itself. During the debates over constitutional ratification, anti-federalists argued that it gave the president monarchical powers. George Washington made several recess appointments without major uproar during the very first Senate recess in 1789, but even the esteemed first president soon ran into trouble. The Senate refused to confirm John Rutledge, his recess appointment to the position of chief justice of the United States, in 1795. The rejection was probably based on an intemperate speech that Rutledge gave about the Jay Treaty, but some historians think senators were also miffed about the recess appointment. The executive and legislative branches have also clashed repeatedly over technicalities surrounding the power, such as whether the vacancy must come into being during a recess, or if the president can fill any existing vacancy.
Historians think the overwhelming majority of 18th- and 19th-century recess appointments were consistent with the apparent intent of the framers—to keep government running during the six- to nine-month vacations that early Congresses took. It’s possible that a few old-time presidents used the power to skirt the advice-and-consent process, but, unlike modern presidents, they didn’t admit it.
The only other obvious example from the 19th century came in 1829, when newly elected Andrew Jackson fired dozens of federal officials and immediately replaced them with newspaper editors who had supported his campaign. He didn’t explicitly say that he’d made the snap move to avoid the Senate confirmation process, but Jackson must have known that putting in his unqualified cronies en masse would have raised serious objections. The Senate removed 10 of the appointees when it came back into session.
The controversy surrounding Jackson’s tactics seems to have scared subsequent presidents away from recess appointments, although some were surely tempted. John Tyler saw the Senate reject nine of his nominees in 1843, including the same man for Treasury secretary three times. And yet Tyler never made a recess appointment
Theodore Roosevelt—somewhat Jacksonian in his view of executive power—seems to be the father of the unapologetic, ideological recess appointment. In 1903, during the seconds-long recess that separated the end of the first session of the 58th Congress and the beginning of the second, Roosevelt appointed 160 people (PDF). Two of them had been recess-appointed once already, and Roosevelt knew they would have had a difficult confirmation process.
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Explainer thanks Donald Ritchie of the Senate Historical Office.
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Slate V thanks Dr. Josh Putnam of Davidson College and the Frontloading blog.
*Correction, Jan. 5, 2012: This article originally stated that John Adams was defeated in the 1802 election. (Return.)