Recess appointment

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A recess appointment is the appointment, by the President of the United States, of a senior federal official while the U.S. Senate is in recess. The U.S. Constitution requires that the most senior federal officers must be confirmed by the Senate before assuming office, but while the Senate is in recess the President may act alone by making a recess appointment to fill "Vacancies that may happen during the Recess of the Senate." 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[edit]

According to Henry B. Hogue, of the Government and Finance Division of the Congressional Research Service,[1]

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.[2] In Federalist No. 67, Alexander Hamilton wrote:[3]

The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body 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 [ ... ]

Another argument 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,[4] recess appointments have tended to solidify opposition to the appointee.[5]

There is currently a split among the circuits of the United States Courts of Appeals on the validity of intrasession appointments and on what vacancies can be filled using the Recess Appointment authority. Following the 2003 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[6][7] held that the Constitution permitted both intrasession recess appointments and recess appointments to fill vacancies that "happened" prior to, rather than during, the congressional recess.

However, National Labor Relations Board v. Noel Canning, Circuit docket 12-1115 in the United States Court of Appeals for the District of Columbia Circuit appealing a decision made by National Labor Relations Board (NLRB) members appointed in what the President determined was an intrasession Recess was decided in a 3 member panel decision on 25 January 2013 that intrasession appointments were unconstitutional because the word 'the' before the word Recess in the Constitution was determined to mean to limit it to only the intersession Recess and it further limited the power by limiting it to only those vacancies that 'happen' to occur during the intersession break and not to vacancies that existed prior to the Recess.[8] Also, on March 16, 2013, the United States Court of Appeals for the Third Circuit joined the DC Circuit and held that the March 2010 appointment of Craig Becker to the NLRB was invalid because he was not appointed between sessions.[9]

Examples and use[edit]

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. President Eisenhower, in a recess appointment, designated Charles W. Yost as United States ambassador to Syria.[10] Eisenhower made two other recess appointments, Chief Justice Earl Warren and Potter Stewart.

George H. W. Bush appointed Lawrence Eagleburger Secretary of State during a recess in 1992; Eagleburger, as Deputy Secretary of State, had in effect filled that role after James Baker resigned.

According to the Congressional Research Service, President Ronald Reagan made 240 recess appointments, President George H. W. Bush made 77 recess appointments, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of January 5, 2012, President Barack Obama had made 32 recess appointments.[11]

Senate action preventing recess appointments[edit]

Sometimes, especially when both houses of Congress are not controlled by a different party than that of the President, the Senate or House leadership will seek to block any potential recess appointments by not allowing the Senate to adjourn for more than three days, blocking a longer adjournment that would allow recess appointments to be made.[12] For example, during the last two years of the George W. Bush administration, Senate Majority Leader Harry Reid prevented any further recess appointments. 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 adjournments of more than three days from then until the end of the Bush presidency by holding pro forma sessions.[13][14] Prior to this, there had been speculation that James Holsinger would receive a recess appointment as U.S. surgeon general.[15]

Over what would have traditionally been the 2011–2012 winter recess of the 112th Congress, the House of Representatives did not assent to recess, specifically to block Richard Cordray's appointment as Director of the Consumer Financial Protection Bureau.[16] As therefore required by the Constitution, both the House and Senate held pro forma sessions.[17] Regardless, on January 4, 2012, President Obama claimed authority to appoint Richard Cordray and others under the Recess Appointments Clause. White House Counsel Kathryn Ruemmler asserted that the appointments were valid, because the pro forma sessions were designed to, "through form, render a constitutional power of the executive obsolete," and that the Senate was for all intents and purposes recessed.[18] Republicans in the Senate disputed the appointments, with Senate Minority Leader Mitch McConnell stating that Obama had "arrogantly circumvented the American people" with the appointments. It was expected that there would be a legal challenge to the appointments.[19] The first such challenge was announced in April 2012, disputing a National Labor Relations Board ruling made following the Obama appointments.[20][21]

On January 6, 2012, the Department of Justice Office of Legal Counsel issued an opinion regarding recess appointments and pro forma sessions, claiming that "[t]he convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a "Recess of the Senate" under the Recess Appointments Clause. In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments." [22][23] However, this was widely disputed.[24][25] On January 25, 2013, in the first circuit case to rule on the validity of the January 4, 2012, appointments, Chief Judge David Sentelle, writing for a unanimous three-judge panel for the United States Court of Appeals for the District of Columbia Circuit, wrote "an interpretation of “the Recess” that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law." [26] There are about 30 other cases representing nearly every Circuit Court of Appeals around the United States pending as of 2013, trying to invalidate the actions of these appointees.[27]

See also[edit]

References[edit]

  1. ^ "Recess Appointments Frequently Asked Questions", Congressional Research Service
  2. ^ "The Original Meaning of the Recess Appointments Clause" UCLA Law Review Volume 52, Number 5(June 2005), pp. 1487–1578
  3. ^ http://constitution.org/fed/federa67.htm
  4. ^ JAMES MOODY; PETER J. MUCHA. "Portrait of Political Party Polarization". Cambridge University Press. Retrieved 15 July 2013. 
  5. ^ David R. Stras; Ryan W. Scott (2007). "NAVIGATING THE NEW POLITICS OF JUDICIAL". Northwestern University Law Review. Princeton University Press. Retrieved 15 July 2013. 
  6. ^ Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).
  7. ^ http://media.aclj.org/pdf/041018_evans_summary.pdf
  8. ^ http://sblog.s3.amazonaws.com/wp-content/uploads/2013/01/01207461695uide694c75117931832.pdf
  9. ^ http://www.nationalreview.com/bench-memos/348688/re-third-circuit-ruling-against-presidential-recess-appointment-authority-ammon
  10. ^ Marine Embassy Security Guard historical archives
  11. ^ Henry B. Hogue; Richard S. Beth. "Recess Appointments: Frequently Asked Questions" (pdf). Congressional Research Service. Retrieved January 4, 2012. 
  12. ^ http://www.cato.org/pub_display.php?pub_id=13993
  13. ^ "Days in Session Calendars U.S. Senate – 110th Congress 2nd Session". Thomas.loc.gov. December 31, 2008. Retrieved May 30, 2011. 
  14. ^ "Senate Calendar – December". Democrats.senate.gov. Retrieved May 30, 2011. 
  15. ^ "Reid To Bush: No Recess Appointments Wanted". Cbsnews.com. November 16, 2007. Retrieved May 30, 2011. 
  16. ^ GOP Furious As Obama Recess Appoints Cordray
  17. ^ Mcconnell, Michael (January 10, 2012). "Democrats and Executive Overreach". The Wall Street Journal. 
  18. ^ Obama Tempts Fight Over Recess Appointments
  19. ^ Analysis: Obama consumer chief decision under a legal cloud
  20. ^ O'Keefe, Ed (April 18, 2012). "Senate GOP joining legal action against Obama recess appointments". The Washington Post. 
  21. ^ http://www.legalnewsline.com/news/235859-gop-plans-brief-opposing-obamas-labor-board-appointments
  22. ^ http://www.justice.gov/olc/memoranda-opinions.html
  23. ^ http://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf
  24. ^ http://ricochet.com/main-feed/The-Constitution-Is-Clear-On-Recess-Appointments
  25. ^ http://www.nationalreview.com/corner/287264/richard-cordray-use-and-abuse-executive-power-john-yoo.  Missing or empty |title= (help)
  26. ^ http://sblog.s3.amazonaws.com/wp-content/uploads/2013/01/01207461695uide694c75117931832.pdf
  27. ^ http://www.scotusblog.com/2013/01/spreading-challenge-to-appointment-power/

Further reading[edit]