, it's funny whenever the Bush administration avoids congressional oversight in its quest for a unitary and unchecked Executive branch. And that happens quite a bit. I just laugh and laugh whenever I think about how Rove and Cheney have been systematically dismantling the system of checks and balances to cover up the egregious incompetence and malevolence of the current administration. The next President who happens to be a Democrat will have a wide range of expanded Executive Privileges at his or her disposal thanks to this administration, but don't worry, a real President will come along who won't rely on signing statements and recess appointments to forward an agenda.
As usual, the Bush regime made its move without regard for the law of the United States:
"Under 5 U.S.C. § 5503, in order for Mr. Fox to be paid for his services as Ambassador, his nomination would have to have been pending before the Senate on March 29th, when the Senate went into recess. Moreover, according to a separate statute, 31 U.S.C. § 1342, the U.S. Government cannot accept "voluntary services" from individuals except in an emergency.
As we understand it, there are some exceptions to this prohibition. For example, "voluntary services" may be permitted if an agreement is made between the individual and the government agency in question that no later claim to compensation will be made. In the case of Mr. Fox, however, it appears that the "voluntary services" prohibition would still apply because the position in question is a statutory entitlement with a fixed rate of pay that cannot be waived (Section 401 of the Foreign Service Act of 1980 mandates a fixed rate of pay for the position of Ambassador).
There appears to be a clear conflict between the pay restrictions as enumerated in Title 5 of the United States Code, which prevent Mr. Fox from being paid due to the circumstances of his recess appointment, and the "voluntary services" provision of Title 31 of the United States Code, which mandates that the United States Department of State cannot accept "voluntary services" for the position to which Mr. Fox has been recess appointed." Letter to the GAO here.
Since we are on the subject, let's look at the other two officials who were installed by recess appointment along with Fox:
- Susan E. Dudley will now oversee regulatory policy at the Office of Management and Budget. Ms. Dudley comes to us from the anti-regulatory Mercatus Center at George Mason University. An anti-regulatory official in charge of regulatory policy, get it? That's almost as good as putting John Bolton in a position where he might have to use diplomacy. Oh well, it's only the OMB. What good is budgetary oversight to anybody, anyway? Dudley's name has been out there since last July for this job.
Why didn't the Senate vote on her when there was a Republican majority?
-Andrew Biggs will now be Deputy Commissioner at Social Security. Mr. Biggs has spent the last few years over at the Cato Institute defending Bush's ideas about how to "fix" Social Security through privatization. Once again, the private accounts idea was a non-starter when the Republicans had a majority in both houses, and it's not going to smell any better this time around. I get the feeling that the White House has not putting in overtime here lately coming up with any dazzling plan to miraculously improve the Social Security system.
Taken from a broad perspective, these are just political appointees who will serve a few years, if that long, and then will be gone. The more specific issue is the abuse of the recess appointment process for political purposes. Clearly, Fox's appointment was done specifically to circumvent congressional inquiry, and it was clearly done out of spite towards the Democratically controlled Congress and specifically John Kerry . These are not the actions of a shrewd political strategist, but those of a petulent and mean spirited child.
These appointments were indicative of the Bush administration's disdain for Congressional oversight and governmental transparency. I feel sorry for those who find it humorous that the Executive branch demonstrates time and time again that it has no regard for the system of checks and balances that holds our Federal government together.