Recess Appointments Clause

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.

Article II, Section 2, Clause 3

The Framers adopted the Recess Appointments Clause, without debate, to prevent governmental paralysis. Early sessions of the Senate lasted only three to six months, with Senators dispersing throughout the country during the six-to-nine-month recesses. During these periods, they were unable to provide their advice and consent to executive nominations for positions that fell open when officeholders died or resigned. The clause thus served as a "supplement" to the vigorously debated appointment power, which was necessary so that the Senate was not required "to be continually in session for the appointment of officers." The Federalist No. 67 (Alexander Hamilton).

The recess appointment power, like the appointment power (Article II, Section 2, Clause 2), applies to "Officers of the United States." Recess appointments to the judiciary have generated significant concern because unconfirmed judges lack the life tenure and guaranteed salary required by Article III. More than 300 judges have received recess appointments, including Supreme Court Justices William J. Brennan, Jr., Potter Stewart, and Earl Warren (all appointed by President Dwight D. Eisenhower). Since 1980, however, only three judges have received recess appointments: Roger L. Gregory (appointed by President William Jefferson Clinton to the Fourth Circuit), Charles W. Pickering, Sr. (appointed by President George W. Bush to the Fifth Circuit), and William H. Pryor (appointed by President George W. Bush to the Eleventh Circuit).

Presidents have used the Recess Appointments Clause to fill not only vacancies that occur during recesses, but also those that initially arose when the Senate was in session. In certain cases, however, a federal statute, 5 U.S.C. § 5503, prohibits the payment of salaries to the latter appointees. Another relevant issue, on which courts have taken varied positions, is whether there is a vacancy when the position is occupied by a "holdover" who remains in office after the expiration of his term.

Presidents have used the clause during both intersession recesses, which occur between two sessions of a Senate, and intrasession recesses, which occur within a Senate session. For the first 150 years of the nation's history, Presidents made recess appointments almost exclusively during intersession recesses. In the post-World War II era, however, and especially since the mid-1980s, Presidents have made recess appointments during intrasession recesses, including recesses of less than two weeks. Some commentators have concluded that the text and intent of the Framers suggest that Presidents can make recess appointments only during intersession recesses of the Senate. Others contend that the text of the clause does not differentiate between types of recesses and that historical practice allows intrasession recess appointments.

A recess appointment lasts until the end of the "next Session" of the Senate. Since sessions in the early twenty-first century typically last ten to twelve months, an appointment made during an intersession recess would last approximately one year, until the end of the following session. On the other hand, an intrasession appointment could last as long as two years, through the end of the succeeding session.

Presidents in recent years have more frequently utilized the recess appointment power, often to avoid the Senate's role in the confirmation process. Despite this trend, the threat of governmental paralysis present at the time of the Framers is drastically reduced today, due to shorter recesses, improvements in transportation and communication, Senate activity taking place during recesses, and statutory succession and holdover provisions that provide for the temporary filling of vacancies.

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Michael A. Carrier
Professor of Law
Rutgers University School of Law, Camden