Clause 3. 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.
The Recess Appointments Clause was adopted by the Constitutional Convention without dissent and without debate regarding the intent and scope of its terms. In Federalist No. 67, Alexander Hamilton refers to the recess appointment power as “nothing more than a supplement . . . for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” It is generally accepted that the clause was designed to enable the President to ensure the unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. In addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political purposes, appointing officials who might have difficulty securing Senate confirmation.
Two fundamental textual issues arise when interpreting the Recess Appointments Clause. The first is the meaning of the phrase “the Recess of the Senate.” The Senate may recess both between and during its annual sessions, but the time period during which the President may make a recess appointment is not clearly answered by the text of the Constitution. The second fundamental textual issue is what constitutes a vacancy that “may happen” during the recess of the Senate. If the words “may happen” are interpreted to refer only to vacancies that arise during a recess, then the President would lack authority to make a recess appointment to a vacancy that existed before the recess began. For over two centuries the Supreme Court did not address either of these issues,635 leaving it to the lower courts and other branches of government to interpret the scope of the Recess Appointments Clause.636
The Supreme Court ultimately adopted a relatively broad interpretation of the Clause in National Labor Relations Board v. Noel Canning.637 With respect to the meaning of the phrase “Recess of the Senate,” the Court concluded that the phrase applied to both inter-session recesses and intrasession recesses. In so holding, the Court, finding the text of the Constitution ambiguous,638 relied on (1) a pragmatic interpretation of the Clause that would allow the President to ensure the “continued functioning” of the federal government when the Senate is away,639 and (2) “long settled and established [historical] practice” of the President making intrasession recess appointments.640 The Court declined, however, to say how long a recess must be to fall within the Clause, instead holding that historical practice counseled that a recess of more than three days but less than ten days is “presumptively too short” to trigger the President’s appointment power under the Clause.641 With respect to the phrase “may happen,” the majority, again finding ambiguity in the text of the Clause,642 held that the Clause applied both to vacancies that first come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess.643 In so holding, the Court again relied on both pragmatic concerns644 and historical practice.645
Even under a broad interpretation of the Recess Appointments Clause, the Senate may limit the ability to make recess appointments by exercising its procedural prerogatives. The Court in Noel Canning held that, for the purposes of the Recess Appointments Clause, the Senate is in session when the Senate says it is, provided that, under its own rules, it retains the capacity to transact Senate business.646 In this vein, Noel Canning provides the Senate with the means to prevent recess appointments by a President who attempts to employ the “subsidiary method” for appointing officers of the United States (i. e. , recess appointments) to avoid the “norm”647 for appointment (i. e. , appointment pursuant to the Article II, sec. 2, cl. 2).648Judicial Appointments
Federal judges clearly fall within the terms of the Recess Appointments Clause. But, unlike with other offices, a problem exists. Article III judges are appointed “during good behavior,” subject only to removal through impeachment. A judge, however, who is given a recess appointment may be “removed” by the Senate’s failure to advise and consent to his appointment; moreover, on the bench, prior to Senate confirmation, he or she may be subject to inﬂuence not felt by other judges. Nonetheless, a constitutional attack upon the status of a federal district judge, given a recess appointment and then withdrawn as a nominee, was rejected by a federal court.649Ad Interim Designations
To be distinguished from the power to make recess appointments is the power of the President to make temporary or ad interim designations of officials to perform the duties of other absent officials. Usually such a situation is provided for in advance by a statute that designates the inferior officer who is to act in place of his immediate superior. But, in the absence of such a provision, both theory and practice concede the President the power to make the designation.650
635 See NLRB v. Noel Canning, 573 U.S. ___, No. 12–1281, slip op. at 9 (2014).
636 For lower court decisions on the Recess Appointments Clause, see, e.g., Evans v. Stephens, 387 F.3d 1220, 1226–27 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005); United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986); United States v. Allocco, 305 F.2d 704, 712 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963); In re Farrow, 3 Fed. 112 (C.C.N.D. Ga. 1880). For prior executive branch interpretations of the Recess Appointments Clause, see 25 Op. OLC 182 (2001); 20 Op. OLC 124, 161 (1996); 16 Op. OLC 15 (1992); 13 Op. OLC 271 (1989); 6 Op. OLC 585, 586 (1982); 3 Op. OLC 314, 316 (1979); 41 Op. Att’y Gen. 463 (1960); 33 Op. Att’y Gen. 20 (1921); 30 Op. Att’y Gen. 314 (1914); 26 Op. Att’y Gen. 234 (1907); 23 Op. Att’y Gen. 599 (1901); 22 Op. Att’y Gen. 82 (1898); 19 Op. Att’y Gen. 261 (1889); 18 Op. Att’y Gen. 28 (1884); 16 Op. Att’y Gen. 523 (1880); 15 Op. Att’y Gen. 207 (1877); 14 Op. Att’y Gen. 563 (1875); 12 Op. Att’y Gen. 455 (1868); 12 Op. Att’y Gen. 32 (1866); 11 Op. Att’y Gen. 179 (1865); 10 Op. Att’y Gen. 356 (1862); 4 Op. Att’y Gen. 523 (1846); 4 Op. Att’y Gen. 361 (1845); 3 Op. Att’y Gen. 673 (1841); 2 Op. Att’y Gen. 525 (1832); 1 Op. Att’y Gen. 631, 633–34 (1823). For the early practice on recess appointments, see G. Haynes, The Senate Of The United States 772–78 (1938).
637 Noel Canning, slip op. at 5–33 (2014).
638 Id. at 9–11. More specifically, the Court found nothing in dictionary definitions or common usage contemporaneous to the Constitution that would suggest that an intra-session recess was not a recess. The Court noted that, while the phrase “the Recess” might suggest limiting recess appointments to the single break between sessions of Congress, the word “the” can also be used “generically or universally,” see, e.g., U.S. Const. art. I, sec. 3, cl. 5 (directing the Senate to choose a President pro tempore “in the Absence of the Vice-President”), and that there were examples of “the Recess” being used in the broader manner at the time of the founding. Noel Canning, slip op. at 9–11.
639 Noel Canning, slip op. at 11. (“The Senate is equally away during both an inter-session and an intra-session recess, and its capacity to participate in the appointments process has nothing to do with the words it uses to signal its departure.”).
640 The Court noted that Presidents have made “thousands” of intra-session recess appointments and that presidential legal advisors had been nearly unanimous in determining that the clause allowed these appointments. Id. at 12.
641 Id. at 21. The Court left open the possibility that some very unusual circumstance, such as a national catastrophe that renders the Senate unavailable, could require the exercise of the recess appointment power during a shorter break. Id.
642 The Court noted, for instance, that Thomas Jefferson thought the phrase in question could point to both vacancies that “may happen to be” during a recess as well as those that “may happen to fall” during a recess. Id. at 22 (emphasis added).
643 Id. at 1–2.
644 Id. at 26 (“[W]e believe the narrower interpretation risks undermining constitutionally conferred powers [in that] . . . [i]t would prevent the President from making any recess appointment that arose before a recess, no matter who the official, no matter how dire the need, no matter how uncontroversial the appointment, and no matter how late in the session the office fell vacant.”).
645 Id. at 34 (“Historical practice over the past 200 years strongly favors the broader interpretation. The tradition of applying the Clause to pre-recess vacancies dates at least to President James Madison.”).
646 Id. In the context of Noel Canning, the Court held that the Senate was in session even during a pro forma session, a brief meeting of the Senate, often lasting minutes, in which no legislative business is conducted. Id. at 38–39. Because the Journal of the Senate (and the Congressional Record) declared the Senate in session during those periods, and because the Senate could, under its rules, have conducted business under unanimous consent (a quorum being presumed), the Court concluded that the Senate was indeed in session. In so holding, the Court deferred to the authority of Congress to “determine the Rules of its Proceedings,” see U.S. Const. art. I, sec. 5, cl. 2, relying on previous case law in which the Court refused to question the validity of a congressional record. Noel Canning, slip op. at 39 (citing United States v. Ballin, 144 U.S. 1, 5 (1892)).
647 Noel Canning, slip op. at 40.
648 It should be noted that, by an act of Congress, if a vacancy existed when the Senate was in session, the ad interim appointee, subject to certain exceptions, may receive no salary until he has been confirmed by the Senate. 5 U.S.C. § 5503 (2012). By targeting the compensation of appointees, as opposed to the President’s recess appointment power itself, this limitation acts as an indirect control on recess appointments, but its constitutionality has not been adjudicated. A federal district court noted that “if any and all restrictions on the President’s recess appointment power, however limited, are prohibited by the Constitution,” restricting payment to recess appointees might be invalid. Staebler v. Carter, 464 F. Supp. 585, 596 n.24 (D.D.C. 1979).
649 United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986). The opinions in the court of appeals provide a wealth of data on the historical practice of giving recess appointments to judges, including the developments in the Eisenhower Administration, when three Justices, Warren, Brennan, and Stewart, were so appointed and later confirmed after participation on the Court. The Senate in 1960 adopted a “sense of the Senate” resolution suggesting that the practice was not a good idea. 106 Cong. Rec. 18130–18145 (1960). Other cases holding that the President’s power under the Recess Appointments Clause extends to filling judicial vacancies in Article III courts include United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963), and Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005). In the latter case, however, Justice Stevens, although concurring in the denial of the petition of certiorari, wrote that “it would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intrasession ‘recesses.’” 544 U.S. at 943.
650 See the following Ops. Att’y Gen.: 6:358 (1854); 12:32, 41 (1866); 25:258 (1904); 28:95 (1909); 38:298 (1935).