Democratic Underground

Bush Doesn't Play Fair at Recess

January 21, 2006
By Gene C. Gerard

Earlier this month President Bush took advantage of Congress’ winter recess to circumvent the Senate and appoint 17 individuals to various government positions. Article II of the Constitution allows presidents to make temporary appointments without Senate approval; those appointed can serve until the next Congressional elections. The Founding Fathers granted the presidency the power to make recess appointments because prior to the 20th century Congress was in session for less than six months a year, in many instances, and vacancies couldn’t wait until Congress reconvened. However, since the 1980s presidents have used recess appointments for political purposes.

Presidents Reagan and Bush made recess appointments in the face of a Democratically-controlled Senate. And following the Republican takeover of Congress in 1994, President Clinton frequently made use of his recess appointment power. In this sense, Mr. Bush’s use of recess appointments is nothing new. However, what is unique is that Mr. Bush is making recess appointments at a time when his own party controls the Senate. And he is making appointments at a pace much greater than that of recent presidents. President Clinton issued 140 recess appointments during his two terms in office. Mr. Bush’s father made 77 appointments during his administration. By comparison, Mr. Bush made 110 appointments during his first term alone.

Mr. Bush’s use of his recess appointment power is unusual in another respect. Many of those appointed are unsuited or unqualified for their positions. In other instances, Mr. Bush has appointed individuals not because of what they know, but rather whom they know. In the Bush administration, it’s frequently not the qualifications or experience of those appointed that matter, but their personal or political connections to Mr. Bush himself.

Among the 17 individuals appointed was Julie Myers, who was installed to head the Bureau of Immigration and Customs Enforcement, a division of the Homeland Security Department. The bureau has 15,000 employees and a budget of $4 billion. Yet Ms. Myers has never managed a large government agency and has no immigration experience. Until her recess appointment she was the special assistant for personnel to Mr. Bush. At the age of 36, Ms. Myers is one of the youngest and most inexperienced officials to ever head an agency. It seems more likely that her personal connections account for the appointment. She is the niece of General Richard Myers, who until recently was the chairman of the Joint Chiefs of Staff, and the wife of Homeland Security Secretary Michael Chertoff’s chief of staff.

Tracy Henke was appointed to serve as Executive Director of the Office of State and Local Government Coordination and Preparedness in the Homeland Security Department. Ms. Henke previously served in the Justice Department, where she was involved in an attempt to alter government documents. Last April, a report on racial profiling compiled by Lawrence Greenfield, the federal director of the Bureau of Justice Statistics, was sent to Ms. Henke for review. The report found that although police stopped blacks, Hispanics, and whites at approximately the same rate, blacks and Hispanics were more likely to be searched and greater force was used against them. Ms. Henke returned the report to Mr. Greenfield with instructions to delete the reference to unfair police treatment of blacks and Hispanics. When Mr. Greenfield refused, he was reprimanded by Justice Department officials and ultimately forced to resign by the Bush administration.

Mr. Bush recess appointed another Justice Department official, Hans von Spakovsky, to serve on the Federal Election Commission (FEC). Yet Mr. von Spakovsky has been strongly criticized for playing a principal role in the Justice Department’s efforts to limit voting rights in Georgia. After Georgia passed a controversial law requiring all voters to produce valid photo identification at the polls, a Justice Department panel of five attorneys reviewed the law. By a vote of four to one, they found that the law potentially violated the Voting Rights Act. However, Mr. von Spakovsky rejected their finding. A subsequent study determined that Georgia’s law might disenfranchise as many as 300,000 poor and elderly voters who do not have a driver’s license, the most commonly available form of identification.

Also appointed to the FEC was Robert Lenhard. Mr. Lenhard was previously an attorney for the AFL-CIO and an outspoken critic of campaign finance reform legislation. In fact, Mr. Lenhard served as legal counsel in the case of McConnell v. FEC, which sought to overturn the Bipartisan Campaign Reform Act of 2002. As counsel, Mr. Lenhard argued that attempts to restrict advertisements disguised as addressing political issues but that actually attack or support a candidate are unlawful. However, the Supreme Court rejected his argument. Republican Senator John McCain referred to Mr. Lenhard as “someone who would use his [FEC] position not to enforce the law, but to weaken it.”

The Constitution clearly affords a president the ability to make appointments while Congress is not in session. But it also mandates that the Senate shall provide “advice and consent” on presidential nominations. By circumventing the Senate Mr. Bush is abusing his power. And he is putting the country at risk by appointing individuals to critical positions who are not qualified.

Gene C. Gerard taught history, religion, and ethics for 14 years at a number of colleges in the Southwest and is a contributing author to the forthcoming book Americans at War, by Greenwood Press. His previous articles have appeared in Political Affairs Magazine, The Free Press, Dissident Voice, Impact Magazine, Alternative Press Review, Intervention Magazine, and The Palestine Chronicle.

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