| This article is part ofa series on the |
| United States Senate |
|---|
 |
| History of the United States Senate |
| Members |
| Politics and procedure |
| Places |
 | This article has multiple issues. Please helpimprove it or discuss these issues on thetalk page.(Learn how and when to remove these messages) (Learn how and when to remove this message)
|
In theUnited States, arecess appointment is an appointment by thepresident of afederal official when theU.S. Senate is inrecess. Under theU.S. Constitution'sAppointments Clause, the president is empowered to nominate, and with theadvice 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 thefederal judiciary. A recess appointment underArticle 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 byAlexander Hamilton inNo. 67 ofThe 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;[1] the Senate has taken measures from time to time to prevent a president from making recess appointments, specifically by holdingpro forma sessions. TheSupreme Court affirmed thatpro forma sessions are sufficient to prevent recess appointments and addressed other intricacies of the practice inNLRB v. Noel Canning (2014). Appointments made during a recess must be confirmed by the Senate by the end of the next session ofCongress, 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 anacting role.
Article II, Section 2, Clause 3, commonly known as theRecess Appointment Clause, provides that,
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.
| This section has multiple issues. Please helpimprove it or discuss these issues on thetalk page.(Learn how and when to remove these messages) (Learn how and when to remove this message)
|
Presidents sinceGeorge Washington have made recess appointments. Washington appointedSouth Carolina judgeJohn Rutledge asChief 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 attemptedsuicide and resigned. Almost every president has used recess appointments to appoint judges, over 300 such judicial recess appointments before 2000, includingten Supreme Court justices.[2]
New Jersey judgeWilliam J. Brennan was appointed to the Supreme Court by PresidentDwight D. Eisenhower in 1956 by a recess appointment.[citation needed] 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 northeasternCatholic on the court.[citation needed] Brennan was promptly confirmed when the Senate came back into session.[citation needed] Eisenhower, in a recess appointment, also designatedCharles W. Yost asUnited States Ambassador to Syria.[citation needed] Eisenhower made two other recess appointments, Chief JusticeEarl Warren and Associate JusticePotter Stewart.[citation needed]
As reported by Adam Serwer, writing forMother Jones, theCongressional Research Service (CRS) tallied
PresidentRonald Reagan ma[king] 240 recess appointments [during his time in office], [and] PresidentGeorge H. W. Bush ma[king] 77 recess appointments....[3][better source needed]
George H. W. Bush appointedLawrence Eagleburger asSecretary of State during a recess in 1992; Eagleburger, asDeputy Secretary of State, had in effect filled that role afterJames Baker resigned.[citation needed]
Henry B. Hogue, a specialist in American national government, summarised the next presidents for the CRS, stating
President William J. Clinton made 139 recess appointments [during his presidency], 95 to full-time positions and 44 to part-time positions. President George W. Bush made 171 recess appointments, 99 to full-time positions and 72 to part-time positions.[4]
During the last two years of the Bush administration, DemocraticSenate Majority LeaderHarry Reid sought to prevent recess appointments.[citation needed] 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.[citation needed] As a result, Reid did not allow adjournments of more than three days from then until the end of the Bush presidency by holdingpro forma sessions.[citation needed][5][non-primary source needed] Prior to this, there had been speculation thatJames W. Holsinger would receive a recess appointment asSurgeon General of the United States.[6]
President Barack Obama made 32 recess appointments (through February 1, 2015), all to full-timepositions.[1] Over what would have traditionally been the 2011–12 winter recess of the112th Congress, the Republican-controlledHouse of Representatives did not assent to recess, specifically to blockRichard Cordray's appointment as Director of theConsumer Financial Protection Bureau.[7] Both the House and Senate continued to holdpro forma sessions.[8]
In August 2017, ninepro forma sessions were set up to block PresidentDonald Trump from making recess appointments; the concern was that Trump might dismissAttorney GeneralJeff Sessions, and try to name his successor while Congress was in recess.[9]Pro forma sessions continued to be held until January 2019: they were held on December 31, 2018,[citation needed][10] and again on January 2, 2019, the last full day of the115th United States Congress, that lasted several minutes.[citation needed]
On April 15, 2020, while Congress was holdingpro forma sessions due to the recess during theCOVID-19 pandemic, President Trump threatened toadjourn both houses of Congress in order to make recess appointments for vacant positions such as theFederal Reserve Board of Governors and theDirector of National Intelligence.[11] 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,[citation needed] and bothSpeaker of the HouseNancy Pelosi andSenate Majority LeaderMitch McConnell indicated that they would not alter the planned date of January 3, 2021.[12][better source needed]
The Senate or House may seek to block potential recess appointments by not allowing the Senate to adjourn underArticle 1, Section 5, Clause 4 of the Constitution, which provides that both Houses must consent to an adjournment.[13] 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.[14]
In order to combat this tactic from Congress, the president can adjourn Congress under Article II section 3 of the Constitution, which states:
He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them,and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. [emphasis added][full citation needed]
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:
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.[15][full citation needed]
 | This sectionneeds attention from an expert in Law or History. The specific problem is:the need to move from stray argument points derived from WP editor selections from primary sources like the Federalist papers and law journal articles, to secondary and tertiary textual sources providing the full scope of modern legal scholarly perspective.WikiProject Law orWikiProject History may be able to help recruit an expert.(November 2024) |
As noted by D.R. Stras and R.W. Scott, writing in 2007 in theNorthwestern University Law Review, "there is a robust debate in the scholarly literature about the meaning of the Recess Appointments Clause."[16] InFederalist No. 67,Alexander Hamilton wrote:
The ordinary power of appointment is confined to the President and Senatejointly, 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 happenin their recess, which it might be necessary for the public service to fill without delay.[17]
Michael B. Rappaport, writing in 2005 in theUCLA Law Review, argues for a revised understanding of the meaning of the word "recess" in the Clause, and that it permits appointments "only when an office becomes vacant during a recess and when the... appointment is made during that recess"; he goes on to state that "if an office is vacant while the Senate is in session, the Constitution expects the President to make anadvice and consent appointment at that time."[18]
Historically, presidents tended to make recess appointments when the Senate was adjourned for lengthy periods.[citation needed] SinceWorld 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.[citation needed]
According to Henry B. Hogue, writing for theCongressional Research Service:
Recent Presidents have made both intersession and intrasession recess appointments [those between sessions/Congresses and those within sessions, respectively]. 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.[19]
Others argue[who?] 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.[citation needed] The view holds[weasel words] that the current interpretation allows appointments to be made during recesses too brief to justify bypassing the Senate.[citation needed]
Most recently, however, as partisanship onCapitol Hill has grown,[citation needed] recess appointments have tended to solidify opposition to the appointee.[citation needed]
Regardless of the Senate continuing to holdpro forma sessions, on January 4, 2012,President Obama appointedRichard Cordray and others as recess appointments.[20][21][22]White House CounselKathryn Ruemmler asserted that the appointments were valid, because thepro 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.[23] Republicans in the Senate disputed the appointments, withSenate Minority LeaderMitch 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.[24]
On January 6, 2012, theDepartment of JusticeOffice 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".[25][26]
However, this was widely disputed.[27][28] The first such challenge was announced in April 2012, disputing aNational Labor Relations Board ruling made following the Obama appointments.[29][30]
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 theU.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 thechecks and balances inherent in theadvice-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."[31]
Also, on March 16, 2013, theThird Circuit joined the D.C. Circuit and held that the March 2010 appointment ofCraig Becker to the NLRB was invalid because he was not appointed between sessions.[32]
On June 26, 2014, in a 9–0 ruling on the case ofNLRB v. Noel Canning, the United States Supreme Court validated this practice of using pro forma sessions to block the president from using the recess appointment authority. JusticeStephen 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.[33] 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."[34]
The dictionary definition ofrecess appointment at WiktionaryAccording to reports from the Congressional Research Service, during their time in office President Ronald Reagan made 240 recess appointments, President George H. W. Bush made 77 recess appointments, President Bill Clinton made 140 recess appointments, and George W. Bush made 171. Obama's first term has seen a paltry 28.
Mr. McConnell, a former federal judge, is a professor of law and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution.
Although there is a robust debate in the scholarly literature aboutthe meaning of the Recess Appointments Clause, 251 every circuit that hasconsidered the question has held that Presidents possess the power to recessappoint federal judges to Article III courts, including during intrasession re-cesses of the Congress.
