Assessing Congressional Responses to Growing Presidential Powers: The Case of Recess Appointments

Abstract

In 2007, the Senate initiated a permanent session expressly to block the president from making recess appointments which would have circumvented the normal advice and consent process and left majority Senate Democrats without a voice in their selection. Using this example as our guide, we examine how Congress, like the 2007 Senate, can use its institutional powers to constrain unilateral presidential powers. We argue that Congress will stand up to presidents when the policy costs of legislative inaction are high and the political costs of action are low. Using multiple research approaches, we show that high political costs for majority party Senate Democrats drove them to find innovative and low-cost solutions to constrain the president. Had the Senate not employed its solution, we estimate that approximately 54% of all vacancies on major independent boards or agencies would have been filled by recess appointees.