Recess Appointments: A Legal Overview
A Legal Overview
Updated July 11, 2007
T. J. Halstead
American Law Division
Recess Appointments: A Legal Overview
Article II of the Constitution provides that the President “shall nominate, and
by and with the advice and consent of the Senate, shall appoint ambassadors, other
public ministers and counsels, judges of the Supreme Court, and all other officers of
the United States, whose appointments are not herein otherwise provided for and
which shall be established by law.” As a supplement to this authority, the
Constitution further provides that “[t]he 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 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. Coupled with the
ambiguities inherent in interpreting the Clause, the President’s use of the recess
appointment power in such a fashion has given rise to significant political and legal
controversy since the beginning of the Republic. This report provides an overview
of the Clause, with a focus on its historical application and interpretation. This report
is a companion piece to CRS Report RL32971, Judicial Recess Appointments: A
Legal Overview, by T. J. Halstead, which focuses specifically on the application and
interpretation of the Clause in the judicial context.
In troduction ......................................................1
Textual Issues and Historical Interpretation.............................3
“Vacancies That May Happen”...................................3
“The Recess of the Senate”......................................7
Authority and Tenure of Recess Appointees............................11
Recess Appointments: A Legal Overview
The Constitution establishes that the President “shall nominate, and by and with
the advice and consent of the Senate, shall appoint ambassadors, other public
ministers and counsels, judges of the Supreme Court, and all other officers of the
United States, whose appointments are not herein otherwise provided for and which
shall be established by law.”1 As a corollary to this general maxim, the Constitution
provides further that “[t]he President shall have Power to fill up all Vacancies that
may happen during the Recess of the Senate, by granting Commissions which shall2
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.”3 During the ratification debates in Pennsylvania,
Thomas McKean noted with approval the sharing of the appointive power with the
Senate and stated that the Senate need not “be under any necessity of sitting
constantly, as has been alleged, for there is an express provision made to enable the
President to fill up all vacancies that may happen during their recess; the4
commissions, to expire at the end of the next session.” Likewise, during the
ratification debates in North Carolina, Archibald Maclaine stated:
It has been objected ... that the power of appointing officers was something like
a monarchical power. Congress are not to be sitting at all times; they will only
sit from time to time, as the public business may render it necessary. Therefore
the executive ought to make temporary appointments.... This power can be vested
nowhere but in the executive, because he is perpetually acting for the public; for,
though the Senate is to advise him in the appointment of officers, &c., yet, during
the recess, the President must do this business, or else it will be neglected; and5
such neglect may occasion public inconveniences.
1 U.S. Const., Art. II, § 2, cl. 2. The appointment of other, so-called “inferior officers,” may
be vested by Congress in the President alone, courts, or department heads. Id.
2 U.S. Const., Art. II, § 2, cl. 3.
3 The Federalist, No. 67, at 409-10 (Alexander Hamilton) (Clinton Rossiter ed. 1961).
4 2 The Documentary History of the Ratification of the Constitution 537 (Merrill Jensen, ed.
5 Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional
Questions, 26 Cardozo L. Rev. 377, 380-81 (2005) (quoting 4 The Founders’ Constitution
In light of its express provisions and these pronouncements, 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.6 This conception of the
recess appointment power as a practical accommodation is supported by the fact that
until the Civil War, Congress consistently met for relatively short sessions followed
by long recesses of six to nine months.7 This pattern largely adhered during and after
the Civil War, with Congress scheduling an intrasession recess of approximately two
weeks from the end of December until the beginning of January.8 The recess
practices of Congress changed in the mid-twentieth century, and are now
characterized by more frequent recesses of relatively short duration within sessions
of a Congress. Adjournments between sessions are also shorter.9
However, in addition to fostering administrative continuity, Presidents have
exercised authority under the Recess Appointments Clause for political purposes
throughout the history of the republic, giving rise to significant political and legal
controversy. For instance, President Madison’s recess appointments of Albert
Gallatin, John Quincy Adams and James A. Bayard as envoys to negotiate a peace
treaty with Great Britain in 1813 prompted heated debate in the Senate.10 Presidents
Jackson, Taylor, and Lincoln made hundreds of recess appointments during their
terms.11 Additionally, recess appointments to the judiciary were common during the
early years of the Republic, with the first five Presidents making 31 such
appointments, including five to the Supreme Court.12 Among these, President
Washington’s recess appointment of John Rutledge as Chief Justice generated
significant controversy, ultimately factoring in his rejection by the Senate.13 It is
interesting to note, however, that “no recorded challenge was made to the
constitutionality of his recess appointment.”14 In total, twelve Justices have been
appointed to the Supreme Court during Senate recesses, and many of these Justices
6 CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by Henry B.
7 Id. See also Michael A. Carrier, When is the Senate in Recess for Purposes of the Recess
Appointments Clause? 92 Mich. L. Rev. 2204, 2212 (1994).
8 Id. at 2212.
9 See Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52
UCLA L. Rev. 1487, 1500-01 (2005).
10 See, 20 Op. A.G. 284 (1996).
11 See, Fish, Carl R. “Removal of Officials by the Presidents of the United States.” Annual
Report of the American Historical Association for the Year 1899. Vol. 1. Washington, D.C.,
Government Printing Office (1900).
12 Thomas A Curtis, Recess Appointments to Article III Courts: The Use of Historical
Practice in Constitutional Interpretation, 84 Colum. L. Rev. 1758, 1755 (1984).
13 Id. at 1775-76.
14 Id. at 1776.
participated in Court business prior to Senate action on their nominations.15 The
mid-nineteenth century phenomena of long congressional adjournments, frequent
resort to recess appointments, and the rise of the spoils system in the federal
government spurred Congress to impose statutory restrictions on the President’s
appointment and removal power, including restrictions on paying certain classes of
recess appointees.16 Additionally, the Tenure of Office Act of 1867, that figured
prominently in the impeachment effort against President Johnson, included several
provisions purporting to limit the recess appointment power of the President.17
As noted above, modern congressional recess practices differ significantly from
the initial dynamic; sessions of Congress are now characterized by more frequent
recesses of relatively short duration and adjournments between sessions have
likewise become shorter.18 Accordingly, controversy over recess appointments may
also now adhere to additional factors, such as the length of a recess, and the
application of statutory restrictions to recess appointees.
Textual Issues and Historical Interpretation
As noted above, practices with respect to recess appointments developed early
and debates between Presidents and the Congress over the propriety of particular19
recess appointments occurred in the formative years of the Republic. Formal
consideration of the issue has occurred primarily in the context of Attorney General
opinions, with periodic attention from the courts and Congress. Aspects of the recess
appointment power were considered as early as 1792, and there were at least nineteen
formal Attorneys General opinions in the nineteenth century on recess appointments,
the earliest being in 1823. The most recent major exposition by an Attorney General
on the recess appointment power was in 1992 and while many of the interpretational
questions surrounding the Clause are now deemed, at least by the Executive Branch,
to be settled, the course of arriving at these interpretations was not unbroken by
contrary opinions and expressions of doubt.
“Vacancies That May Happen”
An initial question that arose was what constitutes a vacancy “that may happen
during the Recess of the Senate.” If the term “happen” is interpreted as referring only
to vacancies that occur during a recess, it necessarily follows that the President would
lack authority to make a recess appointment to a vacancy that existed prior to the
recess. Conversely, if “happen” is construed more broadly to encompass vacancies
that exist during a recess, the President would be empowered to make a recess
15 Henry B. Hogue, The Law: Recess Appointments to Article III Courts, Presidential Studies
Quarterly 34, No. 3 at 661 (2004).
16 See n.90 and accompanying text, infra.
17 See n.95 and accompanying text, infra.
18 Rappaport, n.9, supra.
19 See Curtis, n.12, supra, at 1758.
appointment to any vacant position, irrespective of whether the position became
vacant prior to or during “the Recess of the Senate.” In 1792, the first Attorney
General, Edmund Randolph, responded to an inquiry from Thomas Jefferson, then
serving as Secretary of Foreign Affairs, as to whether a recess appointment could be
made to the position of Chief Coiner of the Mint, a newly created position for which
no nomination had been made before the Senate recessed.20 Positing whether the
unfilled office was a vacancy “which has happened during the recess of the Senate,”
Randolph concluded that the vacancy occurred on the day the office had been created,
and thus could not be filled with a recess appointment.21 Randolph based his opinion
on the text of the Clause and on the “spirit of the Constitution,” declaring that the
Recess Appointments Clause must be “interpreted strictly” because it serves as “an
exception to the general participation of the Senate.”22 In 1799, Alexander Hamilton,
then serving as Major General of the Army, responded to a similar inquiry from the
Secretary of War, stating “[i]t is clear, that independent of the authority of a special
law, the President cannot fill a vacancy which happens during a session of the
In 1823, Attorney General William Wirt, without mentioning the Randolph
interpretation, concluded that the phrase encompassed all vacancies that happen to
exist during “the Recess.”24 While Attorney General Wirt acknowledged that the
“opposite construction is, perhaps, more strictly consonant with the mere letter” of
the Clause (namely, the construction limiting the President to filling vacancies that
originate during a recess), he opted for, in his view, “the only construction of the
Constitution which is compatible with its spirit, reason, and purpose.”25 Wirt stated
The substantial purpose of the constitution was to keep these offices filled; and
powers adequate to this purpose were intended to be conveyed. But if the
President shall not have the power to fill a vacancy thus circumstanced, the
powers are inadequate to the purpose, and the substance of the Constitution will26
be sacrificed to a dubious construction of its letter.
Early controversies between the Senate and the President revolved around the
meaning of this phrase and opposition to the interpretation offered by Attorney
General Wirt had been expressed in the Senate.27 Story, in his Commentaries on the
20 Edmund Randolph, Opinion on Recess Appointments (July 7, 1792), in 24 The Papers of
Thomas Jefferson, at 165-67 (John Catanzariti et al. ed., 1990). See also, Hartnett, n.5,
supra, at 384-86; Rappaport, n.9, supra, at 1518-19.
21 Randolph, n.20, supra, at 166; Rappaport, n.9, supra, at 1519.
22 Randolph, n.20, supra, at 166; Rappaport, n.9, supra, at 1519.
23 Rappaport, n.9, supra, at 1519.
24 1 Op. A.G. 631, 633-34 (1823).
26 Id. at 632.
27 See George H. Haynes, The Senate of the United States, Vol. 2 at 772-73 (Russell and
Constitution, also seems to adopt a construction different from Wirt’s at least with
respect to newly-created offices to which nominations had not been named (akin to
the Randolph position).28
Subsequent opinions of the Attorney General in 1832 and 1841 endorsed Wirt’s
interpretation, although both involved second recess appointments after initial recess
commissions had expired, and both opinions noted that, under such circumstances,
the vacancy could be said to occur after adjournment of the Senate when the first
recess commission ended.29 Furthermore, Attorney General Taney, in the 1832
opinion stated that the Constitution “was formed for practical purposes, and a
construction that defeats the very object of the grant of power cannot be the true one.
It was the intention of the constitution that the offices created by law, and necessary
to carry on the operations of the government, should always be full, or at all events,
that the vacancy should not be a protracted one.”30 Attorney General Taney went on
to stress, however, that “vacancies are not designedly to be kept open by the
President until the recess, for the purpose of avoiding the control of the Senate.”31
In a brief opinion in 1845, Attorney General Mason concluded that “[i]f
vacancies are known to exist during the session of the Senate, and nominations are
not then made, they cannot be filled by executive appointments in the recess of the
Senate.”32 The Attorney General did not mention his predecessor’s opinions to the
contrary, although in a subsequent opinion he did note the prior opinions and stated
that “[f]rom the commencement of the government, it is believed that a power has
been exercised which would appear to be inconsistent with a construction of the
section of the constitution which would confine the meaning of the word ‘happen’
to the time at which the office is in fact vacated.”33 Attorney General Evarts
discussed this later opinion of Mason’s in an opinion issued in 1868, stating that it
“expresses his general concurrence in the construction of the constitutional provision
under consideration adopted by his predecessors.”34
Beginning in 1855, formal Attorneys General opinions returned to the Wirt
interpretation, even with respect to newly created offices that had never been filled.35
Attorney General Bates, in an 1862 opinion, stated that the question “is settled...as
far, at least, as a constitutional question can be settled, by the continued practice of
your predecessors, and the reiterated opinions of mine, and sanctioned, as far as I
Russell ed., 1960).
28 3 Story, Commentaries on the Constitution of the United States 411 (Da Capo ed., 1970).
29 2 Op. A.G. 525 (1832); 3 Op. A.G. 673 (1841).
30 2 Op. A.G. at 526-27.
31 2 Op. A.G. at 528 (emphasis in original).
32 4 Op. A.G. 361, 363 (1845).
33 4 Op. A.G. 523, 525 (1846).
34 12 Op. A.G. 455 (1868).
35 7 Op. A.G. 186 (1855); 18 Op. A.G. 28 (1884); 19 Op. A.G. 261 (1889).
know or believe, by the unbroken acquiescence of the Senate.”36 Attorney General
Stanberry justified his interpretation by noting that the term vacancy “implies
duration, a condition or state of things which may exist for a period of time. Can it
be said that the word happen, when applied to such a subject, is only properly
applicable to its beginning?”37 Stanberry further stated that executive power must
always have capacity for action and that to adopt a narrow construction of the Recess
Appointments Clause would interfere with that ability.38 Attorney General Evarts, in
an 1868 opinion, declared the matter so settled that it is “hardly useful to express an
opinion as upon an original question.”39 Evarts nonetheless “attempted to weigh
anew the opposing interpretation of this clause of the Constitution” in light of the
“renewed interest in the whole subject of executive authority in appointments to
office, excited by recent legislation of Congress,” ultimately concluding that
“I...cannot but give my concurrence to the views of my learned predecessors.”40
Subsequent Attorneys General opinions have consistently interpreted “happen” to
mean “happen to exist” and have condoned recess appointments to offices that
became vacant while the Senate was in session.41
This interpretation was first adopted by a federal court in the 1880 decision In
re Farrow.42 In Farrow, Circuit Justice Woods adopted the reasoning of the
aforementioned Attorneys General opinions, stating that “[t]hese opinions exhaust
all that can be said on the subject.”43 In reaching his conclusion, Circuit Justice
Woods rejected the contrary opinion of a district court, stating that its holding “ought
not to be held to outweigh the authority of the great number which are cited in
support of the opposite view, and of the practice of the executive department for
nearly 60 years, the acquiescence of the senate therein, and the recognition of the
power claimed by both houses of congress.”44 The holding in Farrow was also
followed by Circuit Justice Woods in In re Yancey.45 This interpretation has adhered
in judicial opinions considering the issue in the modern era. In United States v.
36 10 Op. A.G. 356 (1862)
37 12 op. A.G. 32, 34 (1866) (emphasis in original).
38 Id. at 38.
39 12 Op. A.G. 449, 452 (1868).
41 See 14 Op. A.G. 562 (1875); 15 Op. A.G. 207 (1877); 16 Op. A.G. 522 (1880); 16 Op.
A.G. 538 (1880); 17 Op. A.G. 521 (1883); 18 Op. A.G. 29 (1884); 19 Op. A.G. 261 (1889);
26 Op. A.G. 234 (1907); 30 Op. A.G. 314 (1914); 33 Op. A.G. 20 (1921); 41 Op. A.G. 463
(1960); 6 U.S. Op. Off. Legal Counsel 585 (1982).
42 3 Fed. 112, 116 (C.C.N.D. Ga. 1880) (stating that the President has the power to make
appointments “notwithstanding the fact that the vacancy filled by his appointment first
happened when the senate was in session.”).
43 Id. at 115.
44 Id. at 115 (rejecting the holding in Case of District Attorney of United States, 7 Fed. Cas.
45 28 Fed. 445, 450 (C.C.W.D. Tenn. 1886).
Allocco, for instance, the Court of Appeals for the Second Circuit stated that a
contrary interpretation “would create executive paralysis and do violence to the
orderly functioning of our complex government.”46 Likewise, in United States v.
Woodley, the Court of Appeals for the Ninth Circuit stated that a contrary
interpretation would “lead to the absurd result that all offices vacant on the day the
Senate recesses would have to remain vacant at least until the Senate reconvenes.”47
Most recently, in Evans v. Stephens, the Court of Appeals for the Eleventh Circuit
stated that “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.”48 The decisions in Allocco,
Woodley, and Evans v. Stephens are additionally significant, in that all three held that
the President’s power under the Recess Appointments Clause extends to filling
judicial vacancies on Article III courts.49
Thus, Attorneys General and courts have rejected a narrow interpretation of the
provision and have adopted a construction seen as necessary for continuous and
efficient operation of the government. It can also be argued that the Congress has
acquiesced in this interpretation, primarily through the passage of statutes, discussed
below, that recognize the possibility of such appointments.50 Furthermore, while
congressional statements disputing the prevailing interpretation have been made
during periods of controversy surrounding recess appointments, such statements have
been made by “individual members of the senate...but not the senate itself.”51
“The Recess of the Senate”
Another question that emerged later was the meaning of the phrase “the Recess
of the Senate” in the Clause. The first formal opinion on the subject was issued by
Attorney General Knox in 1901, and concluded that the phrase applied only to
adjournments between sessions of Congress (commonly referred to as “intersession”
recesses).52 In reaching this determination, Knox placed significant weight on the use
of the definite article “the” in the Recess Appointments Clause, emphasizing that
“[i]t will be observed that the phrase is ‘the recess.’”53 The opinion further
concluded that if recess appointments were allowed during periods other than an
46 305 F.3d 704, 712 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963).
47 751 F.2d 1008, 1012 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986).
48 387 F.3d 1220, 1226-27 (11th Cir. 2004), cert. denied, 125 S.Ct. 1640 (2005).
49 For an analysis of the interplay of the Recess Appointments Clause and Article III of the
Constitution, see CRS Report RL32971, Judicial Recess Appointments: A Legal Overview,
by T. J. Halstead.
50 See n.90 and accompanying text, infra.
51 Farrow, 3 Fed. at 115.
52 23 Op. A.G. 599 (1901).
53 23 Op. A.G. at 600 (emphasis in original).
intersession recess, nothing would prevent an appointment from being made “during
any adjournment, as from Thursday or Friday until the following Monday.”54 The
opinion specifically rejected a Court of Claims decision that upheld paying the salary
of an Army paymaster appointed during a temporary recess in 1867 (the recess
extended from July 20 to November 21, 1867).55
This position was abandoned in 1921 in an opinion issued by Attorney General
Daugherty that declared that an appointment made during a 29 day intrasession recess
was constitutional. The Daugherty opinion focused on the practical aspects of the
recess appointment dynamic, stating that “[i]f the President’s power of appointment
is to be defeated because the Senate takes an adjournment to a specified date, the
painful and inevitable result will be measurably to prevent the exercise of
governmental functions.”56 In support of this interpretation, the Attorney General
cited the Court of Claims decision repudiated in the Knox opinion, as well as a 1905
report of the Senate Judiciary Committee that had been asked to examine the
meaning of the term “recess.” The report had concluded:
It was evidently intended by the framers of the Constitution that it [Article II,
sec. 2] should mean something real, not something imaginary; something actual,
not something fictitious. They used the word as the mass of mankind then
understood it and now understand it. It means, in our judgment, in this
connection the period of time when the Senate is not sitting in regular or
extraordinary session as a branch of the Congress or in extraordinary session
for the discharge of executive functions; when its members owe no duty of
attendance; when its chamber is empty; when, because of its absence, it can not
receive communications from the President or participate as a body in making
appointments.... This is essentially a proviso to the provision relative to
appointments by and with the advice and consent of the Senate. It was carefully
devised so as to accomplish the purpose in view, without in the slightest degree
changing the policy of the Constitution, that such appointments are only to be
made with the participation of the Senate. Its sole purpose was to render it certain
that at all times there should be, whether the Senate was in session or not, an57
officer for every office, entitled to discharge the duties thereof.
Further emphasizing this functional approach, the Daugherty opinion rejected
the notion that this broader interpretation would authorize intrasession appointments
during brief adjournments, declaring that “an adjournment for 5 or even 10 days58
[cannot] be said to constitute the recess intended by the Constitution.” The opinion
concluded by emphasizing that while “[e]very presumption is to be indulged in favor
of the validity of whatever action [the President] may take..., there is a point,
necessarily hard of definition, where palpable abuse of discretion might subject his
54 Id. at 603.
55 See Gould v. United States, 19 Ct. Cl. 593 (1884).
56 33 Op. A.G. 20, 23 (1921).
57 S.Rept. 4389, 58th Cong., 3d Sess. 2 (1905); 39 Cong. Rec. 3823-24 (1905).
58 Id. at 25.
appointment to review.”59 Subsequent Attorney General and Department of Justice
Office of Legal Counsel opinions have continued to support the constitutionality of
intrasession recess appointments, with more recent pronouncements on the issue
asserting that the Clause encompasses all recesses in excess of three days.60
It would appear that the pocket veto case, Kennedy v. Samspon, has influenced,
at least to a minor degree, the view of the propriety of recess appointments during
short recesses of the Senate.61 In Kennedy, the court struck down the exercise of the
President’s pocket veto power during a six-day intrasession recess of the Congress.
The Constitution provides that a bill becomes law if not returned by the President
after presentment within ten days, “unless the Congress by their adjournment prevent
its return, in which case it shall not be a law.”62 The case cast doubt on the validity
of all intrasession pocket vetoes, not only those of short duration, and Presidents have
since limited their pocket vetoes to periods between sessions or after a Congress has
finally adjourned.63 The Department of Justice, while asserting the validity of a
recess appointment during a 33 day intrasession recess, nevertheless advised
President Carter that “in view of the functional affinity between the pocket veto and
recess appointment powers, Presidents during recent years have been hesitant to
make recess appointments during intrasession recesses of the Senate.”64
While the decision in Kennedy appears to have moderated the use of the recess
appointment power in some instances, recent Presidents have nonetheless made
numerous appointments during short intrasession recesses. President Reagan, for
instance, made a number of intrasession recess appointments, one during an 18 day
recess ending September 8, 1982, nine during a 23 day recess ending on July 23,
1984, and two during the 13 day recess ending on January 21, 1985. President George
H.W. Bush made eight intrasession recess appointments, the shortest occurring
during a 17 day recess. President Clinton made numerous intrasession appointments,
including five during an 11 day recess ending on January 22, 1996, five during a 16
day recess ending on April 15, 1996, one during a nine day recess ending on June 3,
1996, and one during an 11 day recess ending on January 20, 2001. President George
W. Bush has continued the recent practice of making appointments during brief
intrasession recesses, including six such appointments during a recess ending on
April 28, 2003, four during a 10 day recess ending on April 19, 2004, and, perhaps
most controversially, the appointment of William H. Pryor to the Court of Appeals
for the Eleventh Circuit on February 20, 2004, on the seventh day of a ten day recess
59 Id. at 25.
60 See Evans v. Stephens, No. 04-828, Brief for the United States in Opposition to Petition
for a Writ of Certiorari, at 11 (U.S. 2005); Mackie v. Clinton, Memorandum of Points and
Authorities in support of Defendants’ Opposition to Plaintiffs’ Motion for Partial Summary
Judgment, at 24-26, Civ. Action No. 93-0032-LFO (D.D.C. 1993).
61 511 F.2d 430 (D.C. Cir. 1974).
62 U.S. Const., Art. I, § 7, cl. 2.
63 See Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985) (invalidating intersession pocket veto),
vacated as moot sub nom., Burke v. Barnes, 479 U.S. 361 (1987).
64 3 U.S. Op. Off. Legal Counsel 314, 316 (1979).
ending on February 23, 2004.65 The Court of Appeals for the Eleventh Circuit upheld
Pryor’s appointment, stating:
The Constitution, on its face, does not establish a minimum time that an
authorized break in the Senate must last to give legal force to the President’s
appointment power under the Recess Appointments Clause. And we do not set
that limit today. Although a President has not before appointed a judge to an
Article III court during an intrasession recess as short as the one in this case,
appointments to other offices — offices ordinarily requiring Senate confirmation
— have been made during intrasession recess of about this length or shorter.
Furthermore, several times in the past, fairly short intrasession recesses have66
given rise to presidential appointments of judges to Article III courts.
While it did not specifically address “intrasession” recess appointments, the
1905 Senate Judiciary Committee Report, mentioned above and relied on by Attorney
General Daugherty in his 1921 opinion, was prompted by what undoubtedly was the
briefest recess ever relied on by a President in order to make recess appointments. At
the moment the 58th Congress, 1st session ended at noon, December 7, 1903 and thend
2 session immediately began, President Theodore Roosevelt announced the recess
appointment of over 160, mostly military, officers. Two of these appointees had
previously held recess appointments and were controversial officeholders. Taking
action in accordance with the aforementioned position of Attorney General Knox
rejecting the validity of intrasession recess appointments, Roosevelt construed the
period between these sessions as a constructive recess.67 The 1905 Senate Judiciary
Committee Report was issued fourteen months after this action and, as is indicated
by the quotation included above, emphatically rejected Roosevelt’s action. It is
important to note, however, that the Report, while expressing disapprobation of the
President’s exercise of the recess appointment power in such a manner, could be
interpreted as validating the execution of intrasession recess appointments generally.
Furthermore, Roosevelt’s actions could be viewed as a practical manifestation of the
potential infirmities of the Knox interpretation: that is to say, if a formalistic
interpretation of the Clause rests upon a concern that allowing intrasession
appointments will foster systematic avoidance of the Senate’s advice and consent
function, the fact that a President is able to make such appointments during an
instantaneous “constructive recess” of the Senate would appear to belie such a
distinction.68 Alternatively, it could be argued that this historically anomalous event
is simply that, and lends no weight to the overall consideration of the matter.
The question of what constituted a recess for purposes of the appointment power
arose substantially later than the vacancy issue due to the fact that Congress took few
intrasession recesses, other than brief holiday recesses, until the advent of the modern
65 Information on recess appointments may be obtained in the Weekly Compilation of
66 Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 125 S.Ct. 16401 (2005).
67 See Hogue, n.15, supra, at 671.
68 See Hartnett, n.5, supra, at 416.
era.69 Further, as is evident from the aforementioned precedents, the question of what
constitutes a “recess” has become more critical as the opportunity for the execution
of such appointments has increased. Indeed, as illustrated above, there has been a
steady and significant increase in intrasession recess appointments attendant to this
shift in the recess practices of the Congress.
Authority and Tenure of Recess Appointees
As a fundamental matter, it is important to note that a confirmed appointee and
a recess appointee possess the same legal authority.70 The commission of a recess
appointee expires “at the end of [the Senate’s] next session,” whereas the service of
a confirmed appointee continues until the end of the term or at the pleasure of the71
President, subject to the requirements laid out by Congress in creating the position.
The reconvening of the Senate during the same session after a recess is deemed a
continuation of the session and is not regarded as the “next session” within the
meaning of the constitutional provision.72 Thus, for example, an individual who
receives an intrasession recess appointment during the traditional August recess of
a 1st session of a Congress could serve until the end of the second session, which73
would likely be late in the following year. The President may remove a recess
appointee before expiration of his term, either by outright removal (assuming he
otherwise has discretionary removal authority with respect to the office) or by having
another nominee confirmed by the Senate.74
If the nomination of the person appointed during the recess is confirmed upon
the reconvening of the Senate, it has been held that the new commission for the full
statutory term commences from the date of the recess appointment. In other words,
the full statutory term relates back to the date on which the person first assumed
office by means of the recess appointment. The determination of this question may
also depend on the particular statutory provision regarding terms of office and filling
of vacancies.75 It is important to note that Senate rejection of the nomination of a
recess appointee does not constitute a removal, and that the rejected nominee may
69 See Carrier, n.7, supra, at 2212-13.
70 See Hogue, n.6, supra, at 3.
71 Id. at 3.
72 41 Op. A.G. 463, 470-71 (1960); 28 Comp. Gen. 121 (1948).
73 For an exchange on the issue of whether the Senate could alter its recess practices to bring
about earlier termination of recess appointments, see Seth Barrett Tillman, Senate
Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007);
Brian C. Kalt, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy
88 (2007); Seth Barrett Tillman, Terminating Presidential Recess Appointments: A Reply
to Professor Brian C. Kalt, 101 Nw. U. L. Rev. Colloquy 94 (2007); Brian C. Kalt, Keeping
Tillman Adjournments in their Place: A Rejoinder to Seth Barrett Tillman, 101 Nw. U. L.
Rev. Colloquy 108 (2007).
74 41 Op. A.G. at 471.
75 37 Op. A.G. 282 (1933); 9 Comp. Gen. 190 (1929).
still hold office under the Constitution until the termination of the session.76
Furthermore, upon the expiration of the constitutional term of a recess appointee, a
new recess appointment, either of the same, or another person, may be made.77
Successive recess appointments of the same individual, however, may implicate the
pay restriction delineated in 5 U.S.C. §5503(a)(2), as is discussed in further detail
below. Also, while not addressing the issue directly, the court in Staebler v. Carter
noted that a President “could probably not consistently with the principle of checks
and balances grant a recess appointment to one rejected for the particular position by
a vote of the Senate.”78
Additionally, it should be noted that a vacancy must exist before the President
can exercise his recess appointment authority.79 While this observation may seem
self evident, the issue may be complicated by the presence of “holdover” provisions
that regularly accompany fixed term positions. As an example of such a provision,
a member of the Federal Election Commission “may serve on the Commission after
the expiration of his or her term until his or her successor has taken office as a
member of the Commission.”80 Considering this provision in Staebler, the court
upheld a recess appointment to a position that was still occupied by a holdover
Federal Election Commissioner, based on a determination that the expiration of the
holdover commissioner’s formal term created an immediate and ongoing vacancy.81
Conversely, in Mackie v. Clinton, the district court held that the holdover provision
for a member of the Board of Governors of the United States Postal Service did not
constitute a vacancy sufficient to allow the appointment of a new member pursuant
to the Recess Appointments Clause.82 The relevant statutory provision provides that
“[t]he terms of the 9 Governors shall be nine years.... [a] Governor may continue to
serve after the expiration of his term until his successor has qualified, but not to
exceed one year.”83 Relying on this language, the court invalidated a recess
appointment to the Board, based on its determination that the language of the
holdover provision established that a holdover Governor was to hold the office after
the expiration of his term, for a period not to exceed one year, “unless he dies,
resigns, is lawfully removed or ‘some successor has qualified,’ i.e. has been
76 See, In re Marshalship, 20 Fed. 379 (D. Ala. 1884); 2 Op. A.G. 336 (1830); 21 Comp.
Dec. 789 (1915) (Comptroller of the Currency).
77 2 Op. A.G. 525 (1832); 3 Op. A.G. 673 (1841); 4 Op. A.G. 523 (1846); 11 Op. A.G. 179
(1865); 28 Comp. Gen. 30, 38 (1948); 28 Comp. Gen. 121, 129 (1948).
78 464 F.Supp. at 601, n.41.
79 See 3 U.S. Op. Off. Legal Counsel 314, 317 (1979) (“A recess appointment presupposes
the existence of a vacancy. If there is an incumbent in the office the recess appointment in
itself does not effect a removal of the incumbent so as to create a vacancy. Before the
President can exercise his recess appointment power in such a case he must exercise his
constitutional removal power to the extent it is available, or, if not available, the incumbent
must resign” (citations omitted)).
80 2 U.S.C. §437c(a)(2)(B).
81 464 F.Supp. at 589.
82 827 F.Supp. 56 (1993), vacated as moot, 1994 WL 163761 (D.C. Cir. 1994).
83 39 U.S.C. §202(b).
nominated by the President and confirmed by the Senate.”84 From these decisions,
it seems apparent that the issue of whether a holdover provision constitutes a vacancy
for recess appointment purposes will hinge on the specific language contained
t h erei n. 85
Since the early history of the Republic, Congress has established a statutory
framework designed to protect the Senate’s constitutional role in the confirmation
process. For instance, the Federal Vacancies Reform Act of 1998 (which governs the
filling of vacancies falling outside the scope of the Recess Appointments Clause)
establishes which individuals may be designated by the President to temporarily
perform the duties and functions of vacant office and the length of time a designee
may serve.86 The original version of the Vacancies Act was enacted in 1868,87 and
the legislative roots of such provisions can be traced back to a 1795 enactment
limiting the time a temporary assignee could hold office to six months.88
In 1863, Congress attached a rider to the FY1864 Army Appropriations Act that
was the forerunner of current statutory provisions. It prohibited the payment of
money from the Treasury “to any person acting or assuming to act as an officer, civil,
military, or naval, as salary in any office, which is not authorized by some previously
existing law, unless where such office shall be subsequently sanctioned by law,” and
provided further that “nor shall any money be paid out of the Treasury, as a salary,
to any person appointed during the recess of the Senate, to fill a vacancy in any
existing office, which vacancy existed while the Senate was in session and is by law
required to be filled by and with the advice and consent of the Senate, until such89
appointee shall have been confirmed by the Senate.” Under this language, an
officer might have to serve without pay (relying on savings or loans), until such time
as the Senate consented to the nomination. These provisions were enacted in
response to President Lincoln’s recess appointment of hundreds of military officers
84 Mackie, 827 F.Supp. at 58. See also, Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996);
Wilkinson v. Legal Services Corp., 80 F.Supp. 891 (D.D.C. 1994), reversed on other
grounds, Wilkinson v. Legal Services Corp., 80 F.3d 535 (D.C. Cir. 1996); McCalpin v.
Dana, No. 85-542 (D.D.C. 1982), vacated as moot sub nom., McCalpin v. Durant, 766 F.2d
85 See Hogue, n.6, supra, at 3.
86 5 U.S.C. §§ 3345-3349d. The Vacancies Act provides the exclusive means for authorizing
the temporary filling of advice and consent positions unless otherwise expressly provided
in law, or unless the President exercises his authority under the Recess Appointments
87 15 Stat. 168 (1868).
88 1 Stat. 415 (1795).
89 12 Stat. 642, 646 (1863).
in violation of statutory authorization.90 The question of the proper interpretation of
the word “happen” in the Recess Appointments Clause was raised with several
Senators echoing the position of a contemporaneously issued Senate Judiciary
Committee Report stating that vacancies that arose while the Senate was in session
could not be filled by recess appointment.91 Other members noted that contrary
opinions existed on the subject. Elaborating on the intent of the provision, Senator
Fessenden stated: “[i]t may not be in our power to prevent the appointment, but it is
in our power to prevent the payment; and when payment is prevented, I think that
will probably put an end to the habit of making such appointments.”92
These provisions were followed by the passage of the Tenure of Office Act in
1867, which contained a number of restrictions on the President’s appointment and
removal powers.93 Section 2 of the act purported to limit the President’s power to
suspend officers during a recess to instances where it was determined to the
satisfaction of the President that an officer was guilty of misconduct in office, crime,
or was incapable or legally disqualified to hold office. Such removals were to be
reported to the Senate after it reconvened and, in the event that the Senate did not
concur with the suspension, “such officer so suspended” was to “resume the
functions of his office.”94 Section 3 of the act purported to limit the President’s
authority to make recess appointments, providing that such an appointment could be
made only if the vacancy occurred by death or resignation. If a recess appointee’s
nomination was not thereafter confirmed in the next session of the Senate, the office
was to “remain in abeyance.”95 The act also delineated criminal penalties and cut-off
of salary for violations of its provisions. President Andrew Johnson ignored the
provisions of the act in removing Secretary of War Edwin Stanton from office,
precipitating his impeachment.96 Congress amended the act in 1869,97 and ultimately
repealed the provisions entirely in 1887.98 Similar limits on the President’s removal
power were struck down as unconstitutional in the 1926 decision of Myers v. United
States, with the Court stating: “we have no hesitation in holding that... the Tenure of
Office Act of 1867, in so far as it attempted to prevent the President from removing
executive officers who had been appointed by him by and with the advice and
consent of the Senate, was invalid, and that subsequent legislation of the same effect
was equally so.”99
90 See 33 Cong. Globe 564-65 (1863).
91 S.Rept. 80, 37th Cong., 3d Sess. (1863).
92 33 Cong. Globe 565 (1863).
93 14 Stat. 430 (1867).
95 Id. at 431.
96 See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a
Madisonian Device, 40 Duke L.J. 1, 87-88 (1999).
97 16 Stat. 6 (1869).
98 24 Stat. 500 (1887).
99 272 U.S. 52, 176 (1926).
The salary bar for recess appointees that was originally enacted in 1863
remained intact until it was amended in 1940 to provide exceptions to the flat
prohibition, making it less burdensome on officeholders. Codified at 5 U.S.C. §
5503, it currently establishes that if a vacancy existed while the Senate was in session
a person subsequently appointed to that position during a recess may not receive his
salary until he is confirmed by the Senate. Exceptions to this payment prohibition
are provided (1) for appointees to vacancies that arise within 30 days of the recess;
(2) for appointees to an office for which a nomination was pending at the time of the
recess, so long as the nomination is not of an individual appointed during the
preceding recess of the Senate; and (3) for appointees selected to an office where a
nomination had been made but rejected by the Senate within 30 days of the recess,
and the appointee was not the individual so rejected.100 Section 5503(b) provides that
a nomination to fill a vacancy falling within any of the aforementioned exceptions
must be submitted to the Senate not later than 40 days after the beginning of the next
session of the Senate.
Put more succinctly, a recess appointee to a vacancy existing while the Senate
was in session can receive salary pending Senate confirmation of his nomination if
(1) the vacancy arose within 30 days before the end of the session, (2) a nomination
for the office (other than the nomination of a person appointed during the preceding
recess) was pending at the end of the session, or (3) if a nomination for the office was
rejected within 30 days of the end of the session and a person other than the rejected
nominee receives the recess appointment. These exceptions were designed, as stated
in a House Report accompanying the act, “to render the existing prohibition on the
payment of salaries more flexible.”101 The report further explained that “[f]rom a
practical standpoint it frequently creates difficulties especially in those cases in which
a vacancy arose shortly before the close of a congressional session, leaving
insufficient time to fill the vacancy by nomination and confirmation. Difficulties also
arise in cases in which a session terminates before the Senate acts on pending
nominations, as has at times happened.”102
It is interesting to note that the term “session” as used in § 5503 refers to any
time the Senate convenes, and, as such, does not have the same meaning as employed
in the Recess Appointment Clause. The version of this law preceding § 5503 used
the phrase “termination of the session” as opposed to the phrase “end of the session,”
which now appears in § 5503(a)(1). This revision was not intended as a substantive
change, however.103 The “termination” phrase was interpreted by the Comptroller
General to encompass “any adjournment, whether final or not, in contemplation of
a recess covering a substantial period of time.”104
100 5 U.S.C. § 5503(a)(1)-(3).
101 H.Rept. 2646, 76th Cong., 3d Sess. 1 (1940).
102 Id. See also, 28 Comp. Gen. 30 (1948)
103 See S.Rept. 1380, 89th Cong., 2d Sess. 20, 105 (1966).
104 28 Comp. Gen. 30, 37 (1948); see also 41 Op. A.G.463, 473-75 (1960)
In addition to the restrictions laid out in § 5503, an annual funding limitation has
been included in all Treasury and General Governmental Appropriations Acts for
over 60 years that prohibits the payment of any recess appointee whose nomination
has been voted down by the Senate.105
The argument is sometimes forwarded that the service of a recess appointee who
falls under one of the aforementioned pay restrictions is barred by 31 U.S.C. §
1342.106 That provision states that “an officer or employee of the United States
government or of the District of Columbia government may not accept voluntary
services for either government or employ personal services exceeding that authorized
by law except for emergencies involving the safety of human life or the protection
of property.” The prohibition codified at § 1342 was enacted in response to a practice
common late in the Nineteenth Century under which lower grade government
employees were asked to “volunteer” their services for overtime work and agencies
subsequently requested additional appropriations from Congress to pay them.107
Because the voluntary services prohibition is designed to prevent federal
agencies from seeking additional appropriations, interpretations of § 1342 have
concluded that although the section prohibits federal entities from accepting
voluntary services, it does not prohibit acceptance of gratuitous services for which
no future claim for compensation will be made.108 Pursuant to this distinction, the
Government Accountability Office (GAO) has ruled that compensation that is not
fixed by statute may be waived, so long as the waiver renders any service gratuitous.
Conversely, GAO has ruled that compensation that is fixed by statute may not be
waived and deemed gratuitous without specific statutory authority.109
While § 1342 may be controlling with regard to the general service of officers
and employees of the United States, there does not appear to be any basis for its
application to recess appointees who are statutorily barred from receiving pay,
irrespective of whether the position at issue carries a discretionary or fixed rate of
pay. As a fundamental matter, the President’s recess appointment power, including
the power to make recess appointments, arises from the text of the Constitution.
Accordingly, it is difficult to formulate a rationale that would support the conclusion
that a congressional enactment may prevent the service of a recess appointee who
falls within one of the aforementioned prohibitions on payment. Additionally, it
should be noted that the aforementioned pay proscriptions themselves clearly
105 See, e.g., P.L. 108-447, Div. H, Sec. 609; 118 Stat. 3274.
106 See Trish Turner, “Democrats Fight Sam Fox Nomination, Charge He Cannot Serve
Without Pay,” Fox News Corp., April 5, 2007, available at [http://www.foxnews.com/story/
107 Government Accountability Office, Office of the General Counsel, II Principles of
Federal Appropriations Law, 6-95, 3d Ed. (February 2006).
108 Id. at 95-96.
109 Id. at 102.
contemplate that recess appointees falling within their purview will continue to serve,
further obviating the application of § 1342.110
The provisions governing recess appointments are designed to protect the
Senate’s advice and consent function by confining the recess appointment power of
the President. By targeting the compensation of appointees as opposed to the
President’s recess appointment power itself, these limitations act as indirect controls
on recess appointments, and their constitutionality has not been adjudicated. The
court in Staebler v. Carter noted in dicta that “if any and all restrictions on the
President’s recess appointment power, however limited, are prohibited by the
Constitution, 5 U.S.C. § 5503...might also be invalid.”111 Additional constitutional
concerns might arise from the application of these provisions to judicial recess
appointees.112 Attorneys General have consistently advised Presidents of the
applicability of the pay restriction statutes without raising constitutional concerns.113
The scope of the decision in Evans could be seen as lending credence to the
concerns raised in Staebler. As touched upon above, the Eleventh Circuit in Evans
upheld the intrasession recess appointment of William H. Pryor to that court, based
upon a broad interpretation of the President’s authority under the Clause.114 The
court’s decision was accompanied by a dissent from Judge Barkett arguing that a
literal and restrictive interpretation of the Clause was necessitated by the “real,
concrete concern that the understanding of the recess appointment power embraced
by the majority will allow the President to repeatedly bypass the role the Framers
intended the Senate to play in reviewing presidential nominees.”115 Accordingly, the
majority’s acceptance of brief intrasession recess appointments, coupled with the
potential constitutional invalidity of the statutory restrictions noted above, could give
rise to a dynamic whereby the President would have a legal and constitutional basis
upon which to completely bypass the Senate confirmation process, in that the
110 The GAO has relied upon this dynamic in determining that the voluntary services
prohibition does not preclude the service of a recess appointee falling within the pay
proscriptions codified at § 5503, even in instances where the compensation of the position
in question is fixed by statute. Addressing the recess appointment of Sam Fox to serve as
Ambassador to Belgium under circumstances triggering a § 5503 payment prohibition, the
GAO noted that while the rate of compensation for such a position is set by statute, “[t]he
Department of State may allow him to serve without compensation, despite the voluntary
services prohibition of the Antideficiency Act, because Mr. Fox’s service would not result
in a coercive deficiency or a subsequent claim against the Government, which was the
original justification behind the prohibition. Mr. Fox could not make such a claim because
of the statutory bar of section 5503.” Government Accountability Office, Recess
Appointment of Sam Fox, B-309301 at 7-8 (June 8, 2007). The GAO further stated that “an
alternative interpretation that would directly curtail the President’s power to make a recess
appointment to Mr. Fox would raise serious constitutional concerns.” Id. at 8.
111 464 F.Supp. 585, 596 (D.D.C. 1979).
112 See Halstead, n.49, supra, at 11.
113 See, e.g., 15 U.S. Op. Off. Legal Counsel 91 (1991); 41 Op. A.G. 463, 472-80 (1960).
114 See Halstead, n.49, supra, at 8-11.
115 Evans, 387 F.3d at 1235.
President would be empowered to make successive recess appointments during short
recesses with the practical effect of enabling an appointee to serve throughout the
course of an Administration without submitting to the Senate confirmation process.116
The development of such a dynamic is plausible in light of the decisions in Staebler
and Evans, and could arguably transform the Recess Appointments Clause from the
supplementary and auxiliary mechanism discussed by Hamilton into a more
significant grant of presidential power.
In addition to the aforementioned statutory provisions, Congress has also
attempted to influence presidential action in the recess appointment context through
resolutions. Resolutions objecting to Madison’s appointments of envoys to Great
Britain were debated in 1814, but not brought to a vote.117 It is arguable that a sense
of the Senate resolution enacted in 1960 expressing reservation over recess
appointments to the Supreme Court has influenced presidential exercise of the recess
appointment power in the judicial context.118 Prompted by President Eisenhower’s
recess appointments of Earl Warren, William J. Brennan, Jr., and Potter Stewart to
the Supreme Court in 1953, 1956, and 1958, respectively, Senator Hart introduced
S.Res. 334 to discourage such appointments. The resolution provided that it was the
sense of the Senate that this type of recess appointment “is not wholly consistent with
the best interests of the Supreme Court, the nominee who may be involved, the
litigants before the Court, nor indeed the people of the United States.” The resolution
further announced the position that such appointments should be avoided “except
under unusual and urgent circumstances.”119 No recess appointments to the Supreme
Court have been made since the enactment of this resolution, and there has been an
attendant decrease in the number of judicial recess appointments generally, with only
four such appointments occurring since 1960. However, as is indicated by the
decision in Evans, the use of the recess appointment power in the judicial context
remains a contentious issue.
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
116 See Halstead, n.49, supra, at 11 for additional consideration of this issue in the Article
117 See Haynes, n.27, supra, at 772-73.
118 106 Cong. Rec. 18145 (1960).
119 106 Cong. Rec. 12761 (1960).
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