Recess appointment

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 United States Senate, make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions. A recess appointment under Article II, Section 2, Clause 3 of the Constitution is an alternative method of appointing officials that allows the filling of vacancies to maintain the continuity of administrative government through the temporary filling of offices during periods when the Senate is not in session.

On occasion, and controversially, this power has also been used by presidents to temporarily install an unpopular nominee by sidestepping the Senate's role in the confirmation process,[1] and the Senate has taken measures from time to time to prevent a President making recess appointments. In April 2020, President Donald Trump claimed that the president's constitutional power to, "on extraordinary occasions, convene both Houses, or either of them", a power that has never been used, empowers him to suspend both houses of Congress (overriding the pro forma procedure) and enabling him to make appointments to vacant government positions while Congress is suspended.[2]

A recess appointment 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.

Constitutional text

Article II, Section 2, Clause 3, commonly known as the Recess 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.

History

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.[3]

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.[4] 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.[5][6] Prior to this, there had been speculation that James W. Holsinger would receive a recess appointment as Surgeon General of the United States.[7]

President Barack Obama made 32 recess appointments (through February 1, 2015), all to full-time positions.[1] 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.[8] Both the House and Senate continued to hold pro forma sessions.[9]

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.[10] Pro forma sessions continued to be held until January 2019. They were held on December 31, 2018,[11] 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 prorogue 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.[12] However, the U.S. Constitution only grants the President the authority to prorogue 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 have indicated that they will not alter the planned date of January 3, 2021.[13]

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 1, Section 5, Clause 4 of the Constitution, which provides that both Houses must consent to an adjournment.[14] 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.[15]

In order to combat this tactic from Congress the President can dismiss Congress under Article II section 3 of the constitution that 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)

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.[16]

"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."

Legality of intra-session appointments

According to Henry B. Hogue, of the Congressional Research Service's Government and Finance Division:[17]

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. Intrasession recess appointments have sometimes provoked controversy in the Senate, and there is also an academic literature that has drawn their legitimacy into question.

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.[18] In Federalist No. 67, Alexander Hamilton wrote:[19]

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,[20] recess appointments have tended to solidify opposition to the appointee.[21]

Obama's challenge

Regardless of continuing to hold pro forma sessions, on January 4, 2012, President Obama appointed Cordray and others as recess appointments.[22][23][24] 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.[25] 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.[26]

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".[27][28]

Judicial challenges

However, this was widely disputed.[29][30] The first such challenge was announced in April 2012, disputing a National Labor Relations Board ruling made following the Obama appointments.[31][32]

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."[33]

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 Breyer also wrote in NLRB v. Noel Canning 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]

(On July 16, 2013, the U.S. Senate confirmed Cordray to a five-year term as Director.[35])

Prior to National Labor Relations Board v. Noel Canning, there was a split among the circuit courts on the validity of intra-session appointments and on what vacancies can be filled using the Recess Appointment authority. Following the 2003 intra-session appointment of William H. Pryor, Jr., to the U.S. Court of Appeals for the Eleventh Circuit, a small number of criminal defendants, whose appeals were denied by panels including Pryor, appealed on the basis that Pryor's appointment was invalid. The Eleventh Circuit, in an en banc decision in Evans v. Stephens[36][37] held that the Constitution permitted both intra-session recess appointments and recess appointments to fill vacancies that "happened" prior to rather than during the congressional recess.

However, NLRB v. Noel Canning, Circuit docket 12-1115 in the Court of Appeals for the District of Columbia Circuit, appealed a decision made by National Labor Relations Board (NLRB) members appointed, in what President Obama determined was an intra-session recess was decided in a three-member panel decision on January 25, 2013, that intra-session appointments were unconstitutional because the word "the" before the word "Recess" in the Constitution was determined to mean to limit it to only the inter-session recess, and it further limited the power by limiting it to only those vacancies that "happen" to occur during the inter-session break, not to vacancies that existed prior to the recess.[33] 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.[38]

On June 26, 2014, the United States Supreme Court rejected both holdings,[39] while also unanimously deciding that President Obama overreached his executive authority in appointing members to the NLRB while the Senate was still formally in session.[40] Justice Stephen Breyer, in the majority opinion, 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.[40] However, the decision allows the use of recess appointments during breaks within a session for vacancies that existed prior to the break.

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