Presidents can expand their use of powers but there

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Presidents can expand their use of powers, but there is a limit to how far they can push. Excessive presidential actions face retaliation by Congress How Congress can retaliate depends on the rules of the game. For a unilateral power like presidential orders, supermajorities in the House and Senate must come together to pass legislation and defend it from a presidential veto. For recess appointments, a simple change in Senate procedure allows a bare majority in the Senate to prevent presidential use of a unilateral power. Just as the president can creatively use ambiguities in the Constitution to expand his powers, Congress has the option of using ambiguities in their own rules of procedure to successfully check presidential powers. The article proceeds as follows: (1) we reevaluate the constitutional foundations for recess appointments; (2) we review the limited political science literature on recess appointments and how it ties into the broader debate on unilateral presidential powers; (3) we examine past attempts by the Senate to curtail presidential use of recess appointments; (4) we consider the various factors that could influence a president’s decision to utilize recess appointments; and (5) we examine recess appointment use in both a descriptive and a multivariate setting. Finally, we conclude with a discussion of how recess appointments may be used in future administrations.
Nomination Process In the general nomination process, the president first submits a formal nomination to the Senate. The Senate’s presiding officer refers that nomination to the relevant committee, where the committee chair schedules a confirmation hearing. For the nomination to proceed, a majority of the committee must then report the nomination to the floor. If a majority of senators vote to confirm, the nominee then simply waits for a formal commission from the president. Historically, a negative floor vote is the rarest way for a nomination to fail. More often, nominations are defeated before they reach the Senate floor. For either ideological reasons or time constraints, committee chairs will often not schedule a confirmation hearing. When the formal congressional session terminates, it takes any unconfirmed nominations with it. 5 If scheduled, the nominee could also fail to receive a majority vote in the committee. This blocks the nomination from reaching the full Senate, effectively killing the nomination. Finally, opponents of the nomination can filibuster the nomination . To overcome the filibuster, supporters of the nominee would need 60 votes to invoke cloture . Without cloture, the nomination would fail when the session ended. The president has institutional advantages that may allow him to circumvent the Senate.

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