Recess appointment

A recess appointment is the appointment, by the President of the United States, of a senior federal official while the Senate is in recess. The U.S. Constitution requires that the most senior federal officers must normally be confirmed by the Senate before assuming office. However while the U.S. Senate is in recess the President can act alone by making a recess appointment. To remain in effect a recess appointment must be approved by the Senate by the end of the next session of Congress, or the position becomes vacant again; in current practice this means that a recess appointment must be approved by roughly the end of the next calendar year. Recess appointments are authorized by Article II, Section 2 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.

Legitimacy of intrasession appointments

According to Henry B. Hogue, of the Government and Finance Division of the Congressional Research Service,

Recent Presidents have made both intersession (between sessions or Congresses) and intrasession (during a recess within a session) recess appointments. Intrasession recess appointments were unusual, however, prior to the 1940s. Intrasession recess appointments have sometimes provoked controversy in the Senate, and there is also an academic literature that has drawn their legitimacy into question.

It has been argued that as the clause was originally understood, it was expected that if the Senate was in session when an office became vacant, the president would make a standard advice-and-consent appointment at that time. The argument further maintains that recess appointments were only to be made during intersession recesses, which during the early days of the country lasted between six and nine months, and were therefore required to prevent important offices from remaining unfilled for long periods. The current interpretation, this view holds, allows appointments to be made during recesses too brief to justify bypassing the Senate.

Historically, presidents tended to make recess appointments when the Senate was adjourned for lengthy periods. Since World War II, presidents have sometimes made recess appointments when Senate opposition appeared strong, hoping that the appointee might prove himself or herself in office and allow opposition to dissipate. Most recently, however, as partisanship on Capitol Hill has grown, recess appointments have tended to solidify opposition to the appointee.

Following the intrasession appointment of William H. Pryor, Jr. to the United States Court of Appeals for the Eleventh Circuit, a small number of criminal defendants whose appeals were denied by panels including Pryor appealed on the basis that Pryor's appointment was invalid. The Eleventh Circuit, in an en banc decision in Evans v. Stephens held that the Constitution permitted both intrasession recess appointments and recess appointments to fill vacancies that existed prior to the congressional recess.

Examples and use

Presidents since George Washington have made recess appointments. Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. Because of Rutledge's political views and occasional mental illness, however, the Senate rejected his nomination, and Rutledge subsequently attempted suicide and then resigned.

New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight D. Eisenhower in 1956 through a recess appointment. This was done in part with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern Catholic on the court. Brennan was promptly confirmed when the Senate came back into session. Eisenhower made two other recess appointments.

George H. W. Bush appointed Lawrence Eagleburger Secretary of State during a recess in 1992; Eagleburger had in effect filled that role after James Baker resigned. George W. Bush appointed John R. Bolton U.N. Ambassador during the 2005 summer Senate recess.

Recent controversial recess appointments

President Bill Clinton made a recess appointment of Bill Lann 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. Similarly, when the Senate did not vote on his nomination of James Hormel to be ambassador to Luxembourg, Clinton made a recess appointment. Many people felt that the Senate's inaction was because Hormel was openly gay, and when he was appointed, became the first openly gay U.S. ambassador.

With three and a half weeks to go in his presidency, Clinton used the recess appointment power to place Roger L. Gregory on the United States Court of Appeals for the Fourth Circuit. Gregory was the first African-American to serve on that court. This was the first time since President Carter that the recess appointment procedure had been used to select someone to an Article III judgeship, which provides for life tenure and no diminution of salary. The appointment of Gregory raised questions about the meaning of the Recess Clause, Senate prerogatives, and the opportunity of a litigant in federal court to have a case handled by a judge with full independence. On July 20, 2001, the Senate confirmed Judge Gregory to a life term. The constitutional questions involved are still unresolved and were discussed in a report by the Congressional Research Service.

President George W. Bush appointed two judges during Senate recesses, William Pryor and Charles Pickering to U.S. courts of appeals after their nominations were filibustered by Senate Democrats. Judge Pickering, who Bush appointed to the Fifth Circuit, withdrew his name from consideration for renomination and retired when his recess appointment expired. Judge Pryor was subsequently confirmed by the Senate for a lifetime appointment to the Eleventh Circuit. In two terms, Bush made 171 recess appointments.

On August 1, 2005, Bush made a recess appointment of John Bolton, to serve as U.S. representative to the United Nations. Bolton had also been the subject of a Senate filibuster. The filibuster concerned documents that the White House refused to release, which Democrats suggested may contain proof of Bolton's abusive treatment and coercion of staff members or of his improper use of National Security Agency communications intercepts regarding U.S. citizens. Having failed to win Senate confirmation, he resigned his office in December 2006 concurrently with the adjournment of the 109th Congress.

On April 4, 2007, during the Easter recess of Congress, Bush announced three recess appointments. The first was Sam Fox to serve as U.S. Ambassador to Belgium. Fox's appointment had been thwarted in Congress because he had donated $50,000 to the Swift Boat Veterans for Truth during the 2004 presidential campaign, a group whose advertisements many Democrats blamed for John Kerry's loss.

The second appointment announced that day was Susan Dudley to head the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget.

The third recess appointment on April 4 was Andrew G. Biggs to serve as Deputy Commissioner of the Social Security Administration. Biggs was investigated by Senate Democrats in 2005, while serving as Assistant Commissioner for the Social Security Administration, concerning whether he violated a federal ban on congressional lobbying by federal employees when he edited the prepared testimony for a lobbyist appearing before a Democratic Policy Committee Social Security hearing as alleged by John Stanton in Congress Daily.

On March 27, 2010, President Barack Obama continued the practice of recess appointments with 15 appointees to boards and agencies including the contentious choice of union lawyer Craig Becker to the National Labor Relations Board.

On July 7, 2010, Obama made three more recess appointments: Donald Berwick to be the Administrator of the Centers for Medicare and Medicaid Services; Joshua Gutbaum to be a director of the Pension Benefit Guaranty Corporation; and Philip E. Coyle III to be Associate Director for National Security and International Affairs in the Office of Science and Technology Policy in the Executive Office of the President.

Prevention of further recess appointments

Because of Bush's controversial uses of the power, Senate Majority Leader Harry Reid prevented any further recess appointments beginning in 2007. Bush promised not to make any during the August recess that year, but no agreement was reached for the two-week Thanksgiving break in November 2007. As a result, Reid did not allow recess of more than three days from then until the end of the Bush presidency by holding pro forma sessions. Prior to this, there had been speculation that James Holsinger would receive a recess appointment as U.S. surgeon general. The practice did not continue during the Obama Administration, but the pro forma sessions continue to be an option for Senate leaders seeking to prevent recess appointments.

See also

• Advice and consent