The fundamental principle underlying the recess appointments clause is that the president must be able to fulfill his constitutional duty to “take care that the laws be faithfully executed,” even when the Senate is unable to advise and consent to his appointments. In the early years of the republic, when travel was difficult, senators came to Washington and stayed until their work was done. When they returned home at the end of each session, the recess appointments clause ensured that the president could keep the government running during the six to nine months before the next session.
In modern times, as it has become easier for senators to travel home for holidays or “home work periods,” the sessions have been extended to accommodate the long breaks within them. But now, even when the senators are present, they are often unable to discharge their responsibilities because of a legislative invention unforeseen by the Founders: the use of a procedural device employed by a minority to prevent or delay a vote by the majority.
The filibuster did not exist in 1789. It was first used in the 1830s and, for the next century, was used infrequently — and rarely to block confirmation of executive-branch personnel. Today, however, the filibuster is applied to virtually all Senate business, including the confirmation of executive-branch nominees.
As a result, critical executive-branch positions remain vacant while qualified nominees wait months — or years — for an up-or-down vote. Meanwhile, “acting” officials are left to try to manage and implement essential national functions without the democratic legitimacy of a presidential nomination. This is exactly what the recess appointments clause was meant to prevent. As a 1905 Senate Judiciary Committee Report stated: The clause’s “sole purpose was to render it certain that at all times there should be, whether the Senate was in session or not, an officer for every office, entitled to discharge the duties thereof.”
There are serious consequences when a minority of the Senate holds hostage entire agencies. In early 2009, in the midst of the financial crisis, the Financial Times quipped that Treasury Secretary Timothy Geithner was “home alone” because of the department’s lack of Senate-confirmed officials in high-ranking policy positions. It took six months after the attempted bombing of an airliner on Christmas Day 2009 for the head of the Transportation Security Administration to be confirmed — because of a hold placed on the nomination by one senator.