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.
At the Constitutional Convention, the Framers adopted the Recess Appointments Clause, without debate, to prevent governmental paralysis that might occur during the long periods of the year when the Senate was not expected to be in session. In fact, 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. Although the Anti-Federalists feared that a unilateral recess appointment power would give the president “monarchical” powers, Alexander Hamilton answered that the recess appointment power was necessary so that the Senate was not required “to be continually in session for the appointment of officers.” The Federalist No. 67.
The Recess Appointments Clause presents two primary issues. The first concerns when the vacancy initially occurs. Under the arise view, the clause’s language allowing the president to “fill up all vacancies that may happen during the recess of the Senate” requires that the vacancy first occur during a Senate recess. If the vacancy arises during a Senate session, then the clause assumes that the Senate had the opportunity to confirm a nominee and therefore a recess appointment is unnecessary. The arise view was adopted by Edmund Randolph, the first attorney general, in a legal opinion written in 1792 that constrained the power of the president.
Under the second view, a vacancy is eligible to be filled with a recess appointment, even if it arises during a recess, as long as it “happens to exist” during the recess. This exist view was articulated in 1823 in a legal opinion by Attorney General William Wirt. While Wirt acknowledged that the constitutional language supported the arise view, he concluded that the spirit of the Constitution supported the exist view, because an unanticipated occurrence, such as a public emergency, might cause the Senate to recess without confirming a nominee.
The exist view espoused by Wirt has reflected the executive branch’s interpretation of the recess appointment power for the past two centuries. The executive, however, has not limited itself to the reasons that Wirt gave for his view, and has made recess appointments not only when an unanticipated circumstance has prevented confirmation, but also when the Senate has refused to approve a nominee. For a long period, the Senate resisted the executive’s assertion of the exist view. In 1863, Senator Jacob Howard wrote a report for the Senate Judiciary Committee that supported the arise interpretation. S. Rep. No. 37-80 (3rd Sess. 1863). Almost simultaneously, Congress passed a statute that prohibited payment to officers who had been recess appointed to an office that had been vacant during the Senate session. 12 Stat. 646 (1863). It was only in 1940 that Congress amended the statute, allowing payment to recess appointees in three situations, including when the Senate had not acted on a nomination at the time of the recess. 54 Stat. 751 (1940).
The second basic issue regarding the interpretation of the Recess Appointments Clause involves the type of recess during which a recess appointment can be made. Under the intersession view, “the recess of the Senate” refers only to the intersession recess—in other words, the recess between the two annual sessions of the Senate. Intersession recesses of six to nine months occurred in the early years of the republic. By contrast, the intrasession view holds that “the recess” refers not only to intersession recesses, but also to intrasession recesses that occur during a session of the Senate.
The argument for the intersession view begins with the text of the Constitution itself. A review of the seven clauses in the Constitution using the terms “recess” and “adjournment” makes clear that the term recess refers only to intersession recesses while the word adjournment refers to all breaks in legislative business, both intersession and intrasession. This conclusion is supported by the meaning of these terms at the time the Constitution was enacted, as reflected in English and state practice.
The intersession view also draws support from the length of the appointment received by an official under the clause. 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 next Senate session. On the other hand, an intrasession appointment could last as long as two years, through the end of the succeeding session.
The intersession interpretation was largely followed until 1921, with only a limited number of intrasession recess appointments being made during the presidency of Andrew Johnson. Attorney General Harry Daugherty’s opinion to President Warren G. Harding in 1921 set the stage for the modern view of the recess appointment power. Daugherty asserted that the “real question” was not “whether the Senate has adjourned or recessed” but “whether in a practical sense the Senate is in session so that its advice and consent can be obtained.” Ever since the Daugherty opinion, the executive has followed the intrasession view. While the opinion did not specify the minimum length of intrasession recess that would allow a recess appointment— stating only that it had to be more than ten days and that twenty-eight days was long enough—the executive has made recess appointments during recesses as short as ten days and has implied that it could do so during recesses of more than three days. The intrasession view lacks a clear basis for determining the minimum length of a recess that would allow use of the power. In the post–World War II era, however, and especially since the mid-1980s, presidents have made recess appointments during relatively short intrasession recesses.
In an attempt to limit presidents’ uses of recess appointments within Senate sessions, Congresses led by both parties have employed the device of a “pro forma” session. Such sessions generally are not marked by legislative business and can last less than a minute. In 2012, President Barack Obama appointed four officials during a three-day recess surrounded by two pro forma sessions. This recess appointment was supported by an opinion of the Office of Legal Counsel that relied on “practical” reasoning in concluding that “[t]he 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 allow the president to make recess appointments.
Federal courts have disagreed about the scope of the recess appointment power. The Eleventh Circuit upheld President George W. Bush’s appointment during an intrasession recess of William Pryor Jr. to the Eleventh Circuit Court of Appeals, relying on the exist view of vacancy and intrasession view of recess. See Evans v. Stephens (2004). In contrast, the D.C. Circuit held that President Obama’s recess appointments to the National Labor Relations Board during a pro forma session were unconstitutional, relying on the arise view of vacancy and intersession view of recess. See Noel Canning v. NLRB (2013).
In NLRB v. Canning (2014), the Supreme Court held that the president can make recess appointments during intrasession recesses, but held that a three-day recess was too short to trigger the president’s recess-appointment power.
A final issue involves the recess appointment of Article III judges. The recess appointment power, like the appointment power (Article II, Section 2, Clause 2), extends to all “officers of the United States,” including federal judges. Some have argued that the short duration of the recess appointment is inconsistent with the life tenure provision of Article III. Others have responded that the Recess Appointments Clause represents an exception to the life tenure provision. In any event, more than three hundred judges have received recess appointments, including Supreme Court Justices William J. Brennan Jr. and Potter Stewart and Chief Justice Earl Warren (all appointed by President Dwight D. Eisenhower). Since 1980, only three judges have received recess appointments: Roger L. Gregory (appointed by President William J. Clinton to the Fourth Circuit), Charles W. Pickering Sr. (appointed by President George W. Bush to the Fifth Circuit), and William H. Pryor Jr. (appointed by President George W. Bush to the Eleventh Circuit).
Appointments of Officers—Holiday Recess, 23 Op. Att’y Gen. 599 (1901)
Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. 631 (1823)
Executive Power—Recess Appointments, 33 Op. Att’y Gen. 20 (1921)
Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. 5 (2012)
Recess Appointments—Compensation, 3 Op. O.L.C. 314 (1979)
Recess Appointments During an Intrasession Recess, 16 Op. O.L.C. 15 (1992)
Michael A. Carrier, Note, When Is the Senate in Recess for Purposes of the Recess Appointments Clause?, 92 MICH. L. REV. 2204 (1994)
Stuart J. Chanen, Constitutional Restrictions on the President’s Power to Make Recess Appointments, 79 NW. U. L. REV. 191 (1984)
Thomas A. Curtis, Recess Appointments to Article III Courts: The Use of Historical Practice in Constitutional Interpretation, 84 COLUM. L. REV. 1758 (1984) Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 CAR-DOZO L. REV. 377, 416 (2005)
Note, Recess Appointments to the Supreme Court—Constitutional but Unwise?, 10 STAN. L. REV. 124 (1957)
Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. REV. 1487 (2005)
Virginia L. Richards, Temporary Appointments to the Federal Judiciary: Article II Judges?, 60 N.Y.U. L. REV. 702 (1985)
Gould v. United States, 19 Ct. Cl. 593 (1884)
United States v. Allocco, 305 F.2d 704 (2d Cir. 1962)
Staebler v. Carter, 464 F. Supp. 585 (D.D.C. 1979)
United States v. Woodley, 751 F.2d 1008 (9th Cir.
Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993), vacated in part as moot, 1994 WL 163761 (D.C. Cir. 1994)
Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996)
Wilkinson v. Legal Services Corp., 865 F. Supp. 891 (D.D.C. 1994), rev’d on other grounds, 80 F.3d 535 (D.C. Cir. 1996)
Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004)
Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013)
NLRB v. Noel Canning, 573 U.S. (2014)