About Presidential Recess Appointments

The White House’s reflection on a driveway puddle
The White House Is Reflected On Driveway Puddle. Mark Wilson/Getty Images News

Often a politically controversial move, the “recess appointment” is a method by which the President of the United States can legally appoint new senior federal officials, like Cabinet secretaries, without the constitutionally-required approval of the Senate.

The person appointed by the president assumes his or her appointed position without the approval of the Senate. The appointee must be approved by the Senate by the end of the next session of Congress, or when the position becomes vacant again.

The power to make recess appointments is granted to the president by Article II, Section, 2, Clause 3 of the U.S. Constitution, which states: "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."

Believing it would help prevent “governmental paralysis,” the delegates to the 1787 Constitutional Convention adopted the Recess Appointments Clause unanimously and without debate. Since early sessions of Congress lasted only three to six months, Senators would scatter throughout the country during the six-to-nine-month recesses to take care of their farms or businesses. During these extended periods, during which Senators were not available to provide their advice and consent, top presidentially-appointed positions often fell and remained open as when officeholders resigned or died. Thus, the Framers intended that the Recess Appointments Clause would function as a “supplement” to the hotly debated presidential appointment power, and was necessary so that the Senate need not, as Alexander Hamilton wrote in The Federalist No. 67, “be continually in session for the appointment of officers.”

Similar to the general appointment power provided in Article II, Section 2, Clause 2, of the Constitution, the recess appointment power applies to the appointment of “Officers of the United States.” By far, the most controversial recess appointees have been federal judges because judges not confirmed by the Senate do not get the guaranteed life tenure and salary required by Article III. To date, more than 300 federal judges have received recess appointments, including Supreme Court Justices William J. Brennan, Jr., Potter Stewart, and Earl Warren. 

While the Constitution does not address the issue, the Supreme Court ruled in 2014 that the Senate must be in recess for at least three consecutive days before the president can make recess appointments.

Often Considered a "Subterfuge"

While the intent of the Founding Fathers in Article II, Section 2 was to grant the president the power to fill vacancies that actually occurred during a Senate recess, presidents have traditionally applied a much more liberal interpretation, using the clause as a means of bypassing Senate opposition to controversial nominees.

Presidents often hope that opposition to their recess nominees will have lessened by the end of the next congressional session. However, recess appointments are more often looked on as a "subterfuge" and tend to harden the attitude of the opposition party, making final confirmation even more unlikely.

Some Notable Recess Appointments

President George W. Bush has placed several judges on U.S. courts of appeals via recess appointments when Senate Democrats filibustered their confirmation proceedings. In one controversial case, Judge Charles Pickering, appointed to the Fifth Circuit U.S. Court of Appeals, chose to withdraw his name from consideration for re-nomination when his recess appointment expired. President Bush also appointed Judge William H. Pryor, Jr. to the bench of the Eleventh Circuit Court during a recess, after the Senate repeatedly failed to vote on Pryor's nomination.

President Bill Clinton was harshly criticized for his recess appointment of Bill Lan Lee as assistant attorney general for civil rights when it became clear that Lee's strong support of affirmative action would lead to Senate opposition.

President John F. Kennedy appointed renowned jurist Thurgood Marshall to the Supreme Court during a Senate recess after Southern senators threatened to block his nomination. Marshall was later confirmed by the full Senate after the end of his "replacement" term.

The Constitution does not specify a minimum length of time the Senate must be in recess before the president can enact a recess appointment. President Theodore Roosevelt was one of the most liberal of all recess appointees, making several appointments during Senate recesses lasting as little as one day.

Using Pro Forma Sessions to Block Recess Appointments

In attempts to prevent presidents from making recess appointments, Senators of the opposing political party often employ pro forma sessions of the Senate. While no real legislative activity takes place during pro forma sessions, they prevent the Senate from officially being adjourned, thus theoretically blocking the president from making recess appointments.

But It Doesn't Always Work

Obama last day
President Barack Obama arrives at the U.S. Capitol on his final day in office, January 20, 2017. Win McNamee / Getty Images

However, in 2012, four recess appointments to the influential National Labor Relations Board (NLRB) made by President Barak Obama during Congress’ annual winter break were ultimately allowed, despite a break-long series of pro forma sessions called by Senate Republicans. While they were stiffly challenged by Republicans, all four appointees were eventually confirmed by the Democrat-controlled Senate.

As many other presidents have over the years, Obama argued that pro forma sessions cannot be used to quash the president’s “constitutional authority” to make appointments.

On June 26, 2014, in a 9-0 ruling, the United States Supreme Court upheld the practice of using pro forma sessions to block the president from using the recess appointment authority. In its unanimous decision in NLRB v. Noel Canning, the Court ruled that President Obama had overstepped his executive authority in appointing members to the NLRB while the Senate was still formally in session. In the majority opinion, Justice Stephen Breyer held that the Constitution allows Congress itself to determine its sessions and recesses, writing decisively that “the Senate is in session when it says it is,” and that the president does not have the authority to dictate sessions of Congress and thus make recess appointments. However, the Court’s decision upheld the presidential power to make provisional recess appointments during breaks within a congressional session for vacancies that existed prior to the recess. 

Trump Threatens to Force Congress to Adjourn

House Speaker Rep. Nancy Pelosi rips up pages of President Donald Trump’s State of the Union speech on February 04, 2020.
House Speaker Rep. Nancy Pelosi rips up pages of President Donald Trump’s State of the Union speech on February 04, 2020. Mark Wilson/Getty Images

On April 15, 2020, President Donald Trump, claiming to have unprecedented executive authority during the novel COVID-19 pandemic national emergency, threatened to invoke a never-used provision of the US Constitution force Congress to adjourn, thus allowing to make recess appointments to push through many of his nominees who typically require Senate confirmation,such as the Federal Reserve Board of Governors and the Director of National Intelligence. Trump stated at the time that 129 of his nominees were “stuck in the Senate because of partisan obstruction.”

Under Article II, Section 3 of the Constitution, the president “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.” Since the provision had never before been invoked, the U.S. Supreme Court had never been asked to interpret its exact meaning or in what “extraordinary Occasions” it could be applied.

“As the entire US government works to combat the global pandemic, it is absolutely essential that key positions at relevant federal agencies are fully staffed, and we’re not allowing that to take place through our Congress,” the President told reporters during his daily coronavirus briefing. “They’re just not giving it to us. We have many positions that are unstaffed because we can't get approval.”

On April 14, Senate Majority Leader Mitch (R-Kentucky) announced that Congress had decided to stay away from Washington until May 4, due to concerns about the spread of the coronavirus pandemic. In the interim, both the House and Senate held brief pro forma sessions, thus avoiding a formal adjournment and preventing Trump from making recess appointments.

President Trump immediately slammed the move, telling reporters, “The current practice of leaving town while conducting phony pro forma sessions is a dereliction of duty that the American people cannot afford during this crisis.”

In response, McConnell stated that he did not support the president’ plan to invoke Article II, Section 3, noting that any attempt to force an adjournment would require all 100 Senators and 435 Representatives to travel back to Washington to vote on the move, an action both McConnell and House Speaker Nancy Pelosi (D-Calif.) declared unsafe during the pandemic.

When asked about a possible timeline for carrying out his threat to force an adjournment, President Trump suggested that the courts would have the final say. “They know they’ve been warned and they’ve been warned right now. If they don’t approve it, then we’re going to go this route and we’ll probably be challenged in court and we’ll see who wins,” he said.

Though Congress did indeed extend its break due to the COVID-19 pandemic, not returning until May 4, President Trump never carried through on his threat to force them to adjournment. As of August 1, 2020, less than six months from the end of his first term, Trump remains the first president in U.S. history to have gone this deep into an administration without having made at least one recess appointment. Depending on the outcome of the November 2020 presidential election, he stands to become the first president never to get one—except for William Henry Harrison, who died just 31 days after being inaugurated.