Barone’s Guide to Government: Recess appointments

Article II, Section 2: “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 Constitution gives the president the power to nominate, and the Senate the power to confirm, Cabinet members and “all other Officers of the United States, whose Appointments are not herein otherwise provided for,” with the exception of those whom Congress makes appointable by “the President alone, in the Courts of Law, or in the Heads of Departments.”

But in the eighteenth century that left a gaping loophole, as Alexander Hamilton pointed out in Federalist No. 67, if the Senate were not in session. As was the case for extended periods for the first 150 years of constitutional government, when the Senate was out of session for extended periods and it was impossible to assemble Congress quickly to fill vacancies in important offices. So the Constitutional Convention added the proviso that “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.”

Accordingly, for many years so-called recess appointees exercised important powers, including two Supreme Court justices appointed by former President Dwight Eisenhower (and later confirmed) and, during the George W. Bush administration in 2005 and 2006, Ambassador to the United Nations John Bolton.

It became a matter of considerable importance, and of constitutional dispute during the Obama administration, of when the Senate is in recess. The Constitution does not define this explicitly, but Article I, Section 5, provides that “Neither House, during the Session of Congress, shall, without the consent of the other, adjourn for more than three days.” After the 2010 off-year elections, Democrats still had a majority in the Senate, but Republicans had a majority in the House, which meant that Senate Democrats could not have declared the Senate in recess without the concurrence (which of course was not granted) of the House.

The Supreme Court addressed this issue in NLRB v. Noel Canning Co., decided in 2014. Noel Canning, a soft drink distributor, was challenging a decision by the National Labor Relations Board, three of whose five members were appointed by Obama in what he deemed to be a recess of the Senate. Without those members’ votes, the agency would not have had a quorum and could not officially act. The Supreme Court unanimously ruled that the appointments were invalid.

The majority opinion, by Justice Stephen Breyer, said that “the Senate is in session when it says it is,” and that an adjournment that does not last three days, the time which Article I, Section 5 establishes as the minimum time during which one house of Congress cannot adjourn without the consent of the other, is not a recess during which a president can make recess appointments. In addition, the court held that the so-called pro forma sessions in which the Senate met once every three days could not be ignored, as the president did, in determining whether the Senate was in session. The Senate could have conducted formal business during such sessions, and in one instance did so.

Justice Scalia wrote a concurrence, in which three other justices joined, argued that the recess clause was an “anachronism” and covered only vacancies that occurred when the Senate was adjourned, and not to those caused by resignations, discharges or death when the Senate was in session.

Under Obama’s interpretation, recess appointments could frequently be made, and appointees installed during the remainder of a two-year congressional term who could not have been confirmed by the Senate. Under Justice Scalia’s interpretation, recess appointments would likely be exceedingly rare, and could be blocked by one house of Congress refusing to agree on an adjournment.