Bush Doesn't Play Fair at Recess
January 21, 2006
By Gene C. Gerard
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 couldnt
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. Bushs
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.
Bushs father made 77 appointments during his administration.
By comparison, Mr. Bush made 110 appointments during his first term
Mr. Bushs 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, its 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 Chertoffs 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 Departments 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 Georgias
law might disenfranchise as many as 300,000 poor and elderly voters
who do not have a drivers 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
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.