Abuse and circumvention of the “Advice and Consent” Clause

The framers of the Constitution inserted the Advice and Consent Clause to insure joint decision making between the president and the Senate in the exercise of the treaty making and appointment powers. What happens when the aims, purposes and spirit of that clause are abused or circumvented by either one of the joint decision makers? We focus this week on the ability of presidents to thwart the constitutional blueprint for advice and consent of the Senate.

Presidents possess considerable means to abuse and circumvent the Advice and Consent Clause, thus frustrating the aims of the framers’ constitutional design. Consider, for example, the ability of a president to utilize executive agreements and recess appointments to bypass the Senate.

A president may circumvent the Senate and its role in the treaty power, and thus the framers’ emphasis on joint or collective decision making, by resorting to the use of executive agreements, which do not require the advice and consent of the Senate. For a variety of political and policy purposes, a chief executive will prefer unilateral or independent authority to the requirement of winning the consent of the Senate, which invites defeat of a treaty proposal. Presidents have been wary of submitting treaties to the Senate — “the graveyard of treaties” — ever since Woodrow Wilson endured the defeat of his beloved proposal for the United States to join the League of Nations at the conclusion of World War I.

Presidents of both political parties have turned to executive agreements to avoid the Senate. For example, in 1940, President Franklin D. Roosevelt struck with Great Britain the famous destroyers-for-bases deal, which provided a critical lifeline to England at a desperate moment in its war with Germany. FDR asserted statutory authority for his action. Richard Nixon utilized an executive agreement in 1973 to negotiate the Vietnam peace agreement.

Over the years, the White House has invoked as authority for executive agreements: the president’s claimed authority to represent the nation in the field of foreign relations; the president’s authority to receive ambassadors and foreign ministers; the president’s authority as Commander in Chief; and the president’s duty to “take care that the laws be faithfully executed.”

There is no precise boundary between executive agreements and treaties. The Supreme Court has upheld executive agreements as valid, particularly when they are grounded in statutory delegation or an existing treaty. Nevertheless, the use of executive agreements gives rise to controversy since they evade the constitutional checks and balances achieved by the Senate’s role, Alexander Hamilton’s observation in Federalist No. 75, that treaties “are omnicompetent” in foreign relations, and the framers’ determination that the formulation of American foreign policy would reflect, not unilateral presidential power, but the collective wisdom of the president and Congress acting in concert.

The appointment power was created to provide a constitutional means for filling an office created by congressional enactment of a statute. Failure to fill an office would render meaningless the purpose of investing Congress with the authority to create offices, and undermine the ability of government to function efficiently. Occasionally, a vacancy in an office may occur while the Senate is in recess, necessitating a presidential power to make “recess appointments.” Thus, Article II, section 2 of the Constitution declares: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Since the presidency of James Madison, most occupants of the White House have interpreted the Recess Appointment Clause broadly, so that they could fill any existing vacancies, including those that first occurred while the Senate was in session. Rather than nominate someone who might be defeated, presidents could wait until the Senate was in recess to make an “appointment.” When Congress returned, the name of the appointee would be submitted to the Senate for advice and consent, but by that time, the appointee/nominee would have acquired valuable experience in the position, making it more difficult for senators to oppose the nomination. The circumvention of the Senate in this manner is what has given rise to controversy over the years.

President Ronald Reagan was clever in gaming the system. He used recess appointments for the purpose of undermining the Legal Services Corporation, a governmental agency created to provide legal assistance to the poor in civil cases. In his first year in office, President Reagan made no appointments to the board of directors of the corporation. In his second year, for the purpose of ensuring that holdovers from Jimmy Carter’s term did not dominate the board, Reagan made seven recess appointments at the end of 1981. Over the next couple of years, Reagan nominated people to the board, but then withdrew their names before the Senate could act on the nominations. With the vacancies intact, Reagan proceeded to fill the openings with recess appointments, a strategy that enabled him to control the agency from 1981 through 1984, even though none of his appointees was ever confirmed by the Senate.

Recess appointments of federal judges, including the 15 Supreme Court Justices who have ascended to the High Bench through the recess process, are a matter of special concern since their appointment carries, as Article III of the Constitution provides, tenure during “good behavior,” which can mean, generally speaking, a lifetime appointment. Recess appointments have been upheld by the Supreme Court, but it remains disturbing that recess judges, who will exercise the same weighty authority as those that have been subjected to the advice and consent of the Senate, will not have been vetted or scrutinized by the Senate.

The tools and powers available to the president to circumvent the checking and balancing mechanism of advice and consent in matters of treaty making and the appointment power remain a matter of concern and controversy. This is not to say that the Senate — the joint partner in treaty making and appointments — is not without its own devices to frustrate the constitutional design for collective decision making. We turn next week to the ways that the Senate can foil the president’s ambition.