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The Constitutionality of Recess Appointments

by Professor Will Huhn on March 29, 2010

in Constitutional Law,Separation of Powers,Wilson Huhn

     Over the weekend President Obama made a number of recess appointments to federal office.  Here is a CNN report about the appointments.  Below the fold is a brief discussion about the constitutionality of recess appointments and a summary of recent legal scholarship on the issue.

     On Saturday the President released a statement announcing that during the brief congressional recess he would be making a number of appointments to fill vacancies in the federal goverment.  The opening paragraph of the President's statement says:

After facing months of Republican obstruction to administration nominees, President Obama announced his intent to recess appoint fifteen nominees to fill critical administration posts that have been left vacant, including key positions on the economic team and on boards that have been left with vacancies for months.

     Normally, the Constitution requires that senior administration officials be nominated by the President and confirmed by a majority of the Senate.  However, the Constitution also permits the President to make recess appointments.  Recess appointments are governed by Article II, Section 2, Clause 3 of the 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.

     The key question is whether these vacancies "happen[ed] during the recess."   In the present case the offices have been vacant since President Obama took office because Senate Republicans have prevented the nominations from coming to a vote. 

     What did the Framers intend?  Federalist 67 by Alexander Hamilton briefly discusses the "Recess Appointment Clause."   In the course of rebutting the argument that Presidents might use this Clause  to appoint Senators, Hamilton states:

[A]s it would have been improper to oblige [the Senate] 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, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments "during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

     However, the Courts have not interpreted this provision of the Constitution in its narrow, literal sense.  All of the courts that have considered the matter in the modern era have upheld recess appointments whether the vacancy occurred when the Senate was in recess or not.  In the most recent case, Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), the 11th Circuit Court of Appeals upheld the recess appointment of a federal judge and rejected the argument that, to be valid, the office must have become vacant during the recess.  In upholding the power of the President to make this appointment, the Circuit Court invoked a textual argument; an argument based on long tradition, precedent, and congressional acquiescence; and a policy argument:

On its face, the phrase is open to more than one interpretation. For example, the word âhappenâ can be defined as âbefallâ which has been defined as âhappen to be.â …  Therefore, the phrase's most accepted interpretation (upon which the President has relied and that we too accept) does not contradict the plain meaning rule.

In addition, as we understand the history, early Presidents-when delegates to the Constitutional Convention were still active in government-made recess appointments to fill vacancies that originated while the Senate was in Session. For example, President Washington, during a Senate break in 1789, appointed Cyrus Griffin to fill a judgeship created during a previous Session; and President Jefferson, during a Senate break in 1801, appointed three judges to fill vacancies created during a previous Session.

Congress at least implicitly agrees with this view of recess appointments. See 5 U.S.C. § 5503 (1996) (discussing salary requirements for officers appointed to fill a vacancy that existed while Senate was in session).  Furthermore, interpreting the  phrase to prohibit the President from filling a vacancy that comes into being on the last day of a Session but to empower the President to fill a vacancy that arises immediately thereafter (on the first day of a recess) contradicts what we understand to be the purpose of the Recess Appointments Clause: to keep important offices filled and the government functioning.

     Does it make any difference under the Constitution if Congress has already voted on the nomination and rejected it?  The Circuit Court in Evans says that it makes no legal difference – this, says the court, is a political question:

Plaintiff-appellees seem to go on to contend another thing. They contend that the President misused this discretionary appointment authority in this particular instance because Judge Pryor's nomination-before the recess appointment-had been especially controversial and his confirmation had been blocked in the Senate. The argument, as we understand it, is that this specific recess appointment circumvented and showed an improper lack of deference to the Senate's advice-and-consent role and, thus, should not be allowed.

This kind of argument presents a political question that moves beyond interpretation of the text of the Constitution and on to matters of discretionary power, comity and good policy. These matters are criteria of political wisdom and are highly subjective. They might be the proper cause for political challenges to the President, but not for judicial decision making: we lack the legal standards-once we move away from interpreting the text of the Constitution-to determine how much Presidential deference is due to the Senate when the President is exercising the discretionary authority that the Constitution gives fully to him.

     Professor Michael Rappaport reaches a conclusion opposite from that of the Circuit Court in Evans.  See Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 U.C.L.A. Law Review 1487 (2005).  Rappaport contends that in light of the probable intent of the framers, the Recess Appointment Clause should be narrowly construed to mean that Presidents may only use it to fill offices that come open during a recess of Congress.  He also believes that appointments may not be made during short "intrasession" recesses.

     T.J. Halstead of the nonpartisan Congressional Research Service issued a report in 2005 discussing the constitutionality of recess appointments.  He describes the history of this practice, discusses the relevant cases, and notes that the Supreme Court has not issued a definitive interpretation of this provision of the Constitution:

     While generally perceived as a straightforward, pragmatic provision designed to foster administrative continuity, the history of the Recess Appointments Clause shows that it has also been employed by Presidents for political purposes throughout the history of the Republic. As such, the Clause has been the source of recurrent controversy, beginning with the Administration of George Washington, and continuing to the current Administration of George W. Bush. Historical interpretation and judicial treatment of the Clause have fleshed out many of its inherent ambiguities, to the extent that there is now precedent supporting the propriety of such appointments irrespective of when the vacancy at issue arose. Likewise, precedent has been established to support recess appointments during both intersession and brief intrasession recesses. However, many tensions remain regarding the proper scope and application of the Clause. These tensions, coupled with the lack of any definitive consideration by the Supreme Court, would thus seem to ensure that the Clause will continue to be the source of political and legal controversy.

      Senate practices such as filibusters and holds that permit a minority of Senators or even a single Senator to keep an office of the government vacant are, in my opinion, contrary to the intent of the Constitution wherein the people created a government and vested it with certain powers – including an Executive branch and a Congress where the bedrock principle is "majority rule."  The loose interpretation of the Recess Appointment Clause allowing the President to fill any and all vacancies during recesses of the Senate is not particularly consistent with the framer's wording or their specific anticipation of when the provision would come into play, but it is consistent with an even more important constitutional value: "to keep important offices filled and the government functioning," as the court in Evans said.   In light of the longstanding tradition of making these appointments and judicial precedent upholding them, I think that President Obama's recess appointments are constitutional.  I do not agree with the decision in Evans allowing the President to appoint a nominee who has been voted on and rejected by the Senate, though – that seems like an "end run" around the power of the democratic majority of the Senate to reject a specific nominee.

Visit Professor Huhn's website on constitutional law.


larry d. March 29, 2010 at 6:17 am

I doubt the founders would agree that "keeping important offices filled" is a more important constitutional value than preserving checks and balances.

That said, if obstructing congress members do not want the president to make these recess appointments, they should bring the nominees up for vote and stay in session until they can do so.

Quidpro March 29, 2010 at 10:53 am

The President's power to make recess appointments is another example of the Founders wisdom. It allows the the President to overcome the inability or refusal of Congress to confirm or reject, yet allows the position to be filled only until the next session of Congress.

Mike March 29, 2010 at 1:31 pm

Seems pretty common sense. If members of one party, refuse to allow a vote to proceed on a nominee, and the Constitution clearly allows recess appointments, then somebody should work in Washington and do something! Obama did, he appointed them under constitutional law. As was already mentioned, instead of the obstructionist party tactics, allow our Government to function!!

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