What Is A Recess Appointment

A recess appointment is a type of appointment made by the President of the United States to fill a vacant position in the federal government when the Senate is not in session. This type of appointment allows the President to bypass the usual Senate confirmation process, which can be time-consuming and potentially contentious. The recess appointment power is granted to the President under Article II, Section 2, Clause 3 of the United States Constitution, which states 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 and Purpose of Recess Appointments

The recess appointment power has been used by Presidents since the early days of the Republic. The purpose of this power is to allow the President to fill critical vacancies in the government without delay, even when the Senate is not available to provide advice and consent. This can be particularly important in times of national emergency or when a vacancy occurs in a key position, such as a ambassadorship or a federal judgeship. Recess appointments can also be used to circumvent opposition from the Senate, which may be unwilling to confirm a particular nominee. However, recess appointments are temporary and expire at the end of the next Senate session, unless the nominee is subsequently confirmed by the Senate.

Types of Recess Appointments

There are two types of recess appointments: intrasession recess appointments and intersession recess appointments. Intrasession recess appointments occur when the Senate takes a break within a session, while intersession recess appointments occur between sessions of Congress. Intrasession recess appointments are generally considered to be more controversial than intersession recess appointments, as they can be used to bypass the Senate’s advice and consent role in a more deliberate manner.

The following table highlights the key differences between intrasession and intersession recess appointments:

In recent years, the use of recess appointments has been the subject of significant controversy, particularly during the presidency of Barack Obama. In 2012, Obama made several recess appointments to the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB), despite the fact that the Senate was holding pro forma sessions every few days. The Supreme Court ultimately ruled in NLRB v. Noel Canning that the President's recess appointment power is limited to intersession recesses and that the Senate's pro forma sessions can be sufficient to prevent a recess from occurring.

Implications and Future Directions

The use of recess appointments has significant implications for the balance of power between the President and the Senate. While the recess appointment power can be an important tool for the President to use in times of national emergency or when the Senate is unable or unwilling to act, it can also be used to circumvent the Senate’s advice and consent role and to appoint individuals who may not be confirmable through the regular process. As the Supreme Court’s decision in NLRB v. Noel Canning makes clear, the use of recess appointments is subject to significant limitations and uncertainties, and the President must carefully consider the legal and political implications of making a recess appointment.

In conclusion, recess appointments are an important aspect of the President's power to fill vacancies in the federal government. While the use of recess appointments can be controversial, it can also be a useful tool for the President to use in times of national emergency or when the Senate is unable or unwilling to act. As the Supreme Court continues to clarify the limits of the President's recess appointment power, it is likely that the use of recess appointments will remain a significant issue in the ongoing debate over the balance of power between the President and the Senate.