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{{short description|Appointment by the president of a federal official when the U.S. Senate is in recess}}{{Use mdy dates|date=April 2012}}{{United States Senate}}In the United States, a recess appointment is an appointment by the president of a federal official when the U.S. Senate is in recess. Under the U.S. Constitution's Appointments Clause, the president is empowered to nominate, and with the advice and consent (confirmation) of the Senate, make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions, as well as to the federal judiciary. A recess appointment under Article II, Section 2, Clause 3 of the Constitution is an alternative method of appointing officials that allows the temporary filling of offices during periods when the Senate is not in session. It was anticipated that the Senate would be away for months at a time, so the ability to fill vacancies in important positions when the Senate is in recess and unavailable to provide advice and consent was deemed essential to maintain government function, as described by Alexander Hamilton in No. 67 of The Federalist Papers.In modern times, the Senate is in session nearly year-round, making the recess appointment mechanism far less necessary or useful for upkeep of government function. Nonetheless, in recent times this power has also been controversially used as a political tool to temporarily install an unpopular nominee by sidestepping the Senate's role in the confirmation process;WEB, Hogue, Henry B., Recess Appointments: Frequently Asked Questions, March 11, 2015,weblink CRS Reports, Congressional Research Service, Washington, D.C., February 10, 2018, the Senate has taken measures from time to time to prevent a president from making recess appointments, specifically by holding pro forma sessions. The Supreme Court affirmed that pro forma sessions are sufficient to prevent recess appointments and addressed other intricacies of the practice in NLRB v. Noel Canning (2014). Appointments made during a recess must be confirmed by the Senate by the end of the next session of Congress, or the appointment expires. In current practice, this means that a recess appointment must be approved by roughly the end of the next calendar year and thus could last for almost two years, if made early enough in the year. In situations where a recess appointment is prevented, a lower official frequently assumes the duties of the position in an acting role.

Constitutional text

Article II, Section 2, Clause 3, commonly known as the Recess Appointment Clause, provides that,

History

{{More citations needed|date=July 2017}}Presidents since George Washington have made recess appointments. Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. Because of Rutledge's political views and occasional mental illness, however, the Senate rejected his nomination, and Rutledge attempted suicide and resigned. Almost every president has used recess appointments to appoint judges, over 300 such judicial recess appointments before 2000, including ten Supreme Court justices.JOURNAL, Arnold, Tim, Spring 2011, Recess Appointments,weblink UVA Lawyer, New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight D. Eisenhower in 1956 by a recess appointment. This was done in part with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern Catholic on the court. Brennan was promptly confirmed when the Senate came back into session. Eisenhower, in a recess appointment, designated Charles W. Yost as United States Ambassador to Syria.WEB,weblink Marine Embassy Security Guard historical archives, Msg-history.com, December 10, 2016, Eisenhower made two other recess appointments, Chief Justice Earl Warren and Associate Justice Potter Stewart.According to the Congressional Research Service, President Ronald Reagan made 240 recess appointments (average 30 per year) and President George H. W. Bush made 77 recess appointments (average 19 per year). George H. W. Bush appointed Lawrence Eagleburger as Secretary of State during a recess in 1992; Eagleburger, as Deputy Secretary of State, had in effect filled that role after James Baker resigned.President Bill Clinton made 139 recess appointments (average of 17 per year).President George W. Bush made 171 recess appointments (average of 21 per year). During the last two years of the Bush administration, Democratic Senate Majority Leader Harry Reid sought to prevent further recess appointments. Bush promised not to make any during the August recess that year, but no agreement was reached for the two-week Thanksgiving break, in November 2007. As a result, Reid did not allow adjournments of more than three days from then until the end of the Bush presidency by holding pro forma sessions.WEB,weblink Days in Session Calendars U.S. Senate – 110th Congress 2nd Session, Thomas.loc.gov, December 31, 2008, May 30, 2011, May 6, 2009,weblink" title="web.archive.org/web/20090506095036weblink">weblink dead, WEB,weblink Senate Calendar – December, Democrats.senate.gov, May 30, 2011, dead,weblink" title="web.archive.org/web/20110606164135weblink">weblink June 6, 2011, Prior to this, there had been speculation that James W. Holsinger would receive a recess appointment as Surgeon General of the United States.NEWS,weblink Reid To Bush: No Recess Appointments Wanted, Cbsnews.com, November 16, 2007, May 30, 2011, President Barack Obama made 32 recess appointments (through February 1, 2015), all to full-timepositions. Over what would have traditionally been the 2011–12 winter recess of the 112th Congress, the Republican-controlled House of Representatives did not assent to recess, specifically to block Richard Cordray's appointment as Director of the Consumer Financial Protection Bureau.WEB,weblink GOP Furious As Obama Recess Appoints Cordray, talkingpointsmemo.com, January 4, 2012, December 10, 2016, Both the House and Senate continued to hold pro forma sessions.NEWS,weblink The Wall Street Journal, Michael, Mcconnell, Democrats and Executive Overreach, January 10, 2012, In August 2017, nine pro forma sessions were set up to block President Donald Trump from making recess appointments. The concern was that Trump might dismiss Attorney General Jeff Sessions, and try to name his successor while Congress was in recess.WEB, Senate blocks Trump from making recess appointments over break, 2017-08-03, The Hill (newspaper), The Hill,weblink 2022-12-21, live,weblink Pro forma sessions continued to be held until January 2019. They were held on December 31, 2018,NEWS,weblink Shutdown set to extend into new year after Congress punts on budget, border votes, Werner, Erica, Kane, Paul, December 27, 2018, The Washington Post, live, December 27, 2018, Sonmez, Felicia,weblink December 27, 2018, and again on January 2, 2019, the last full day of the 115th United States Congress, that lasted several minutes.On April 15, 2020, while Congress was holding pro forma sessions due to the recess during the COVID-19 pandemic, President Trump threatened to adjourn both houses of Congress in order to make recess appointments for vacant positions such as the Federal Reserve Board of Governors and the Director of National Intelligence.WEB,weblink Trump threatens to adjourn both chambers of Congress, Zilbermints, Regina, 2020-04-15, The Hill (newspaper), The Hill, en, 2020-04-19, However, the U.S. Constitution only grants the president the authority to adjourn Congress if it is unable to agree on a date of adjournment, and both Speaker of the House Nancy Pelosi and Senate Majority Leader Mitch McConnell indicated that they would not alter the planned date of January 3, 2021.WEB,weblink Explainer: Does Trump have the authority to adjourn US Congress?, www.aljazeera.com, 2020-04-19,

Congressional action to prevent recess appointments

The Senate or House may seek to block potential recess appointments by not allowing the Senate to adjourn under (Article One of the United States Constitution#Clause 4: Adjournment|Article 1, Section 5, Clause 4 of the Constitution), which provides that both Houses must consent to an adjournment.Article 1, Section 5, Clause 4: Adjournment of the Constitution says: "Neither House ... shall, without the Consent of the other, adjourn for more than three days". This tactic is especially used when either House of Congress is controlled by a different party than that of the president, the Senate or House may seek to block potential recess appointments by not allowing the Senate to adjourn for more than three days, blocking a longer adjournment that would allow recess appointments to be made.WEB,weblink Obama's Sham Constitutionalism, January 5, 2012, Cato.org, December 10, 2016, In order to combat this tactic from Congress, the president can adjourn Congress under Article II section 3 of the constitution that states}}According to Article II Section 2 of the Constitution, the president can appoint or fill up the vacancies that happen during a recess without the Senate's approval, but those positions will end at the end of the next legislative session unless Congress approves the appointment.WEB,weblink Article II,

Legality of intra-session appointments

According to Henry B. Hogue, of the Congressional Research Service's Government and Finance Division:NEWS,weblink senate.gov, Recess Appointments: Frequently Asked Questions (RS21308), March 11, 2015, {{quotation|Recent Presidents have made both intersession [between sessions or Congresses] and intrasession [during a recess within a session] recess appointments. Intrasession recess appointments were unusual, however, prior to the 1940s, in part because intrasession recesses were less common at that time. Intrasession recess appointments have sometimes provoked controversy in the Senate, and some academic literature also has called their legitimacy into question. Legal opinions have also varied on this issue over time.}}It has been argued that as the clause was originally understood, it was expected that if the Senate was in session when an office became vacant, the president would make a standard advice-and-consent appointment at that time.JOURNAL,weblink The Original Meaning of the Recess Appointments Clause, UCLA Law Review, 52, 5, June 2005, 1487–1578, 621381, In Federalist No. 67, Alexander Hamilton wrote:WEB,weblink The Federalist #67, Constitution.org, December 10, 2016, {{quotation|The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay. ...}}Another argument maintains that recess appointments were to be made only during inter-session recesses, which during the early days of the country lasted between six and nine months, and were therefore required to prevent important offices from remaining unfilled for long periods. The view holds that the current interpretation allows appointments to be made during recesses too brief to justify bypassing the Senate.Historically, presidents tended to make recess appointments when the Senate was adjourned for lengthy periods. Since World War II, presidents have sometimes made recess appointments when Senate opposition appeared strong in the hope that appointees might prove themselves in office and then allow opposition to dissipate. Most recently, however, as partisanship on Capitol Hill has grown,JOURNAL, Portrait of Political Party Polarization,weblink Cambridge University Press, July 15, 2013, Moody, James, Mucha, Peter J., Network Science, 2013, 1, 119–121, 10.1017/nws.2012.3, 3905434, recess appointments have tended to solidify opposition to the appointee.WEB, Navigating the New Politics of Judicial Appointments,weblink Northwestern University Law Review, Princeton University Press, July 15, 2013, David R. Stras, Ryan W. Scott, 2007,

Obama's challenge

Regardless of the Senate continuing to hold pro forma sessions, on January 4, 2012, President Obama appointed Richard Cordray and others as recess appointments.WEB,weblinkweblink" title="archive.today/20120108080740weblink">weblink dead, January 8, 2012, Stymied by Congress, Obama to boldly seat nominees, 2012-01-05, 2012-01-04, Chicago Tribune, Clarke, Dave, Matt Spetalnick, amp, WEB,weblink Defying Republicans, Obama to Name Cordray as Consumer Agency Chief, 2012-01-05, 2012-01-04, The New York Times, Cooper, Helene, John H. Cushman, Jr., amp, WEB,weblink Bucking Senate, Obama Appoints Consumer Chief, 2012-01-05, 2012-01-04, The New York Times, Cooper, Helene, Steinhauer, Jennifer, Jennifer Steinhauer, White House Counsel Kathryn Ruemmler asserted that the appointments were valid, because the pro forma sessions were designed to, "through form, render a constitutional power of the executive obsolete" and that the Senate was for all intents and purposes recessed.WEB,weblink Obama Tempts Fight Over Recess Appointments, Charlie, Savage, Thecaucus.blogs.nytimes.com, January 4, 2012, December 10, 2016, Republicans in the Senate disputed the appointments, with Senate Minority Leader Mitch McConnell stating that Obama had "arrogantly circumvented the American people" with the appointments. It was expected that there would be a legal challenge to the appointments.WEB,weblink Analysis: Obama consumer chief decision under a legal cloud, January 5, 2012, Reuters.com, December 26, 2016, Reuters, On January 6, 2012, the Department of Justice Office of Legal Counsel issued an opinion regarding recess appointments and pro forma sessions, claiming, "The convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a "Recess of the Senate" under the Recess Appointments Clause. In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments".WEB,weblink OLC: Opinions by Date and Title, 2012-02-02, dead,weblink" title="web.archive.org/web/20120118145608weblink">weblink January 18, 2012, WEB,weblink Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 2012-02-02, dead,weblink" title="web.archive.org/web/20120118153021weblink">weblink January 18, 2012,

Judicial challenges

However, this was widely disputed.WEB,weblink The Constitution Is Clear On Recess Appointments - Ricochet, Ricochet.com, January 5, 2012, December 10, 2016, WEB, The Corner The one and only.,weblink Richard Cordray & the Use and Abuse of Executive Power, National Review, 2012-01-05, 2016-12-10, The first such challenge was announced in April 2012, disputing a National Labor Relations Board ruling made following the Obama appointments.NEWS,weblink The Washington Post, Ed, O'Keefe, Senate GOP joining legal action against Obama recess appointments, April 18, 2012, WEB,weblink GOP plans brief opposing Obama's labor board appointments, 2012-04-17, dead,weblink" title="web.archive.org/web/20120509151356weblink">weblink May 9, 2012, On January 25, 2013, in the first circuit case to rule on the validity of the January 4, 2012, appointments, Chief Judge David Sentelle, writing for a unanimous three-judge panel for the U.S. Court of Appeals for the D.C. Circuit, wrote "an interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."WEB,weblink Noel Canning, A Division of the Noel Corporation, Petitioner v. National Labor Relations Board, Respondent, Sblog.s3.amazonaws.com, 2016-12-10, Also, on March 16, 2013, the Third Circuit joined the D.C. Circuit and held that the March 2010 appointment of Craig Becker to the NLRB was invalid because he was not appointed between sessions.WEB,weblink Re: Third Circuit Ruling Against Presidential Recess-Appointment Authority, CNationalreview.com, May 17, 2013, December 10, 2016, On June 26, 2014, in a 9–0 ruling, the United States Supreme Court validated this practice of using pro forma sessions to block the president from using the recess appointment authority. Justice Stephen Breyer wrote that the Constitution allows for the Congress itself to determine its sessions and recesses, that "the Senate is in session when it says it is", and that the President does not have the unilateral right to dictate Congressional sessions and thus make recess appointments.NEWS, Senate 9, President 0,weblink The Wall Street Journal, June 26, 2014, September 13, 2021, However, the decision allows the use of recess appointments during breaks within a session for vacancies that existed prior to the break. Justice Breyer also noted that the president could force a recess if he had enough congressional support: "The Constitution also gives the President (if he has enough allies in Congress) a way to force a recess. Art. II, §3 ('[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper'). Moreover, the president and Senators engage with each other in many different ways [*28] and have a variety of methods of encouraging each other to accept their points of view. Regardless, the Recess Appointments Clause is not designed to overcome serious institutional friction. It simply provides a subsidiary method for appointing officials when the Senate is away during a recess."WEB,weblink Bloomberg Law - Document – NLRB v. Noel Canning, 134 S. Ct. 2550, 189 L. Ed. 2d 538, 199 LRRM 3685, 82 U.S.L.W. 4599 (2014), Court Opinionwebsite2.bloomberglaw.com, December 10, 2016,

See also

• List of positions filled by presidential appointment with Senate confirmation
• Unsuccessful recess appointments to United States federal courts
• Federal Vacancies Reform Act of 1998
• {{Wiktionary-inline|recess appointment}}

References

{{Reflist|30em}}

Further reading

• Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007).
• Kalt, Response, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy 88 (2007).
• Tillman, Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, 101 Nw. U. L. Rev. Colloquy 94 (2007).
• Kalt, Keeping Adjournments in Their Place, 101 Nw. U. L. Rev. Colloquy 108 (2007).
• {{Citation |last=O'Keefe |first=Ed |date=January 5, 2012 |title=What is a recess appointment?

• Recess Appointments Made by President George W. Bush, January 20, 2001- October 31, 2008 Congressional Research Service
• Recess Appointments Made by President Barack Obama Congressional Research Service

{{United States Congress}}{{US Constitution}}