Recess Appointments

A recess appointment is a temporary appointment made by the U.S. President to a vacant federal office without Senate approval, utilized when the Senate is in an official recess. This mechanism, outlined in the Constitution's Article II, Section 2, Clause 3, was historically necessary when Congress was out of session for months at a time and travel was slow. 

Key Details

• Purpose: The original intent was to ensure government continuity by allowing the president to fill critical vacancies without delay when the Senate was unavailable to provide "advice and consent".

• Temporary Nature: A recess appointment is not permanent. The appointee's commission expires at the end of the next session of Congress (which typically means at most one or two years) unless they are confirmed by a full Senate vote in the interim.

• Modern Limitations: The Supreme Court's unanimous 2014 ruling in NLRB v. Noel Canning significantly curtailed the use of recess appointments. The Court determined that:

  • The Senate must be in a recess of at least 10 days for the power to be invoked.

  • The Senate is in session when it says it is, validating the use of "pro forma" sessions (brief meetings where no official business is conducted) to prevent a formal recess and thereby block recess appointments.

  • The President cannot unilaterally decide when the Senate is in recess. 

Political Context

Presidents from both parties have utilized recess appointments, often to circumvent political opposition to controversial nominees. George W. Bush made 171 such appointments, Bill Clinton made 139, and Barack Obama made 32. 

The power has become a subject of intense modern political debate, particularly with President-elect Donald Trump recently advocating for its use to quickly install his cabinet and other nominees. However, the Noel Canning ruling means that the Senate can block these appointments by using pro forma sessions, a tactic frequently employed by the opposing party in recent years. 

A president can theoretically force a recess if the House and Senate disagree on an adjournment time, but this power has never been tested and would likely face immediate legal challenges.