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 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;^[1] 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,

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.^[2]

New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight 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 northeastern Catholic on the court.^{[citation needed]} Brennan was promptly confirmed when the Senate came back into session.^{[citation needed]} Eisenhower, in a recess appointment, also designated Charles W. Yost as United States Ambassador to Syria.^{[citation needed]} Eisenhower made two other recess appointments, Chief Justice Earl Warren and Associate Justice Potter Stewart.^{[citation needed]}

As reported by Adam Serwer, writing for Mother Jones, the Congressional Research Service (CRS) tallied

President Ronald Reagan ma[king] 240 recess appointments [during his time in office], [and] President George H. W. Bush ma[king] 77 recess appointments...^[3].^{[better source needed]}

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.^{[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, Democratic Senate Majority Leader Harry 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 holding pro forma sessions.^{[citation needed]}^[5]^{[non-primary source needed]} Prior to this, there had been speculation that James W. Holsinger would receive a recess appointment as Surgeon General of the United States.^[6]

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.^[7] Both the House and Senate continued to hold pro forma sessions.^[8]

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.^[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 the 115th United States Congress, that lasted several minutes.^{[citation needed]}

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.^[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 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.^[12]^{[better source needed]}

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.^[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]}

Legality of intra-session appointments

As noted by D.R. Stras and R.W. Scott, writing in 2007 in the Northwestern University Law Review, "there is a robust debate in the scholarly literature about the meaning of the Recess Appointments Clause."^[16] In Federalist No. 67, Alexander Hamilton wrote:

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.^[17]

Michael B. Rappaport, writing in 2005 in the UCLA 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 an advice and consent appointment at that time."^[18]

Historically, presidents tended to make recess appointments when the Senate was adjourned for lengthy periods.^{[citation needed]} 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.^{[citation needed]}

According to Henry B. Hogue, writing for the Congressional 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 on Capitol Hill has grown,^{[citation needed]} recess appointments have tended to solidify opposition to the appointee.^{[citation needed]}

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.^[20]^[21]^[22] 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.^[23] 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.^[24]

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".^[25]^[26]

Judicial challenges

However, this was widely disputed.^[27]^[28] The first such challenge was announced in April 2012, disputing a National 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 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."^[31]

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.^[32]

On June 26, 2014, in a 9–0 ruling on the case of NLRB 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. 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.^[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]

References

^ ^a ^b Hogue, Henry B. (March 11, 2015). "Recess Appointments: Frequently Asked Questions" (PDF). CRS Reports. Washington, D.C.: Congressional Research Service. Retrieved February 10, 2018.
^ Arnold, Tim (Spring 2011). "Recess Appointments". UVA Lawyer.^{[full citation needed]}
^ Serwer, Adam (January 4, 2012). Chart of the Day: Presidential Recess Appointments. Mother Jones (Report). Retrieved November 19, 2024. According 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.
^ Hogue, Henry B. (September 7, 2017). Recess Appointments Made by President Barack Obama (PDF). CRS Report—Prepared for Members of Congress (Report). Washington, DC: Congressional Research Service. Retrieved November 19, 2024 – via Federation of American Scientists (FAS) Project on Government Secrecy (SGP.FAS.org).
^ • "Days in Session Calendars U.S. Senate – 110th Congress 2nd Session". Thomas.loc.gov. December 31, 2008. Archived from the original on May 6, 2009. Retrieved May 30, 2011.^{[non-primary source needed]}
:• "Senate Calendar – December". Democrats.senate.gov. Archived from the original on June 6, 2011. Retrieved May 30, 2011.^{[non-primary source needed]}
^ "Reid To Bush: No Recess Appointments Wanted". CBSNews.com. November 16, 2007. Retrieved May 30, 2011.^{[full citation needed]}
^ "GOP Furious As Obama Recess Appoints Cordray". talkingpointsmemo.com. January 4, 2012. Retrieved December 10, 2016.^{[full citation needed]}
^ McConnell, Michael (January 10, 2012). "Democrats and Executive Overreach" (outside opinion). The Wall Street Journal. Retrieved November 19, 2024. 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.
^ "Senate blocks Trump from making recess appointments over break". The Hill. August 3, 2017. Archived from the original on December 21, 2022.^{[full citation needed]}
^ Werner, Erica; Kane, Paul; Sonmez, Felicia (December 27, 2018). "Shutdown Set to Extend Into New Year After Congress Punts on Budget, Border Votes". The Washington Post. Archived from the original on December 27, 2018. Retrieved December 27, 2018.
^ Zilbermints, Regina (April 15, 2020). "Trump threatens to adjourn both chambers of Congress". The Hill. Retrieved April 19, 2020.
^ "Explainer: Does Trump have the authority to adjourn US Congress?". www.aljazeera.com. Retrieved April 19, 2020.^{[full citation needed]}
^ 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".
^ "Obama's Sham Constitutionalism". Cato.org. January 5, 2012. Retrieved December 10, 2016.
^ "Article II".^{[full citation needed]}
^ Stras, David R.; Scott, Ryan W. (2007). "Review Essay: Navigating the New Politics of Judicial Appointments [Review of 'The Next Justice: Repairing the Supreme Court Appointments Process' by Christopher L. Eisgruber (Princeton University Press, Princeton 2007)]" (PDF). NU Law Review. 102 (4). Chicago, IL: Northwestern University (NU): 1869–1917. Archived from the original (PDF) on March 21, 2013. Retrieved November 19, 2024. 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.
^ "The Federalist #67". Constitution.org. Retrieved December 10, 2016.
^ Rappaport, Michael B. (June 2005). "The Original Meaning of the Recess Appointments Clause" (PDF). UCLA Law Review. 52 (5): 1487–1578. SSRN 621381. Retrieved November 19, 2024.
^ Hogue, Henry B. (March 11, 2015). "Recess Appointments: Frequently Asked Questions". CRS Report—Prepared for Members of Congress. Washington, DC: Congressional Research Service (CRS). pp. 1–10, esp. 2. Retrieved November 19, 2024.
^ Clarke, Dave & Matt Spetalnick (January 4, 2012). "Stymied by Congress, Obama to boldly seat nominees". Chicago Tribune. Archived from the original on January 8, 2012. Retrieved January 5, 2012.
^ Cooper, Helene & John H. Cushman, Jr. (January 4, 2012). "Defying Republicans, Obama to Name Cordray as Consumer Agency Chief". The New York Times. Retrieved January 5, 2012.
^ Cooper, Helene; Steinhauer, Jennifer (January 4, 2012). "Bucking Senate, Obama Appoints Consumer Chief". The New York Times. Retrieved January 5, 2012.
^ Savage, Charlie (January 4, 2012). "Obama Tempts Fight Over Recess Appointments". Thecaucus.blogs.nytimes.com. Retrieved December 10, 2016.
^ "Analysis: Obama consumer chief decision under a legal cloud". Reuters.com. January 5, 2012. Retrieved December 26, 2016 – via Reuters.
^ "OLC: Opinions by Date and Title". Archived from the original on January 18, 2012. Retrieved February 2, 2012.
^ "Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions" (PDF). Archived from the original (PDF) on January 18, 2012. Retrieved February 2, 2012.
^ "The Constitution Is Clear On Recess Appointments - Ricochet". Ricochet.com. January 5, 2012. Retrieved December 10, 2016.
^ The Corner The one and only. (January 5, 2012). "Richard Cordray & the Use and Abuse of Executive Power". National Review. Retrieved December 10, 2016.
^ O'Keefe, Ed (April 18, 2012). "Senate GOP joining legal action against Obama recess appointments". The Washington Post.
^ "GOP plans brief opposing Obama's labor board appointments". Archived from the original on May 9, 2012. Retrieved April 17, 2012.
^ "Noel Canning, A Division of the Noel Corporation, Petitioner v. National Labor Relations Board, Respondent" (PDF). Sblog.s3.amazonaws.com. Retrieved December 10, 2016.
^ "Re: Third Circuit Ruling Against Presidential Recess-Appointment Authority". CNationalreview.com. May 17, 2013. Retrieved December 10, 2016.
^ "Senate 9, President 0". The Wall Street Journal. June 26, 2014. Retrieved September 13, 2021.
^ "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". Retrieved December 10, 2016.