Article. II. Section. 2. Clause 3: 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.
Click above to learn the debates surrounding the interpretation of this presidential right.
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Since early in our country's history, there has been debate over the President's Constitional right to make appointments during a Senate recess.
What is considered a \"recess?\" Is it the time between sessions of Congress, or can it also mean a recess during a session (such as this summer's August recess)? Does this only apply to vacancies that \"happen\" during a recess, or also vacancies that have not been filled by the time a recess occurs?
Numerous reports from Attorneys General and other government agencies have sought to answer what the Framers intended and define this power of the president. These reports have suggested that the clause was, at least in part, intended to allow the president to temporarily fill positions while the Congress was not in session (which early on could be for months at a time) in order to maintain the continuity of the operations of the government.
President George Washington interpreted this power narrowly, and only made recess appointments when a vacancy occurred during a Senate recess. But President James Madison began the practice (which has continued ever since) of making recess appointments to vacancies even when the vacancies occurred while the Senate was in session. ";
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There are two types of recess appointments: Intersession (between sessions of Congress) and intrasession (during a recess within a session, like a summer recess).
Since Senate recesses within a session are now relatively short, a presidential recess appointment during this time is currently used, as one encyclopedia described, \"for the strategic purpose of circumventing the confirmation process.\" According to a recent CRS report, prior to 1943, only Presidents Andrew Johnson, Warren Harding and Calvin Coolidge made any intrasession appointments (and only a total of 16). But recent presidents (with the exception of President Gerald Ford) have made both kinds of recess appointments. ";
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A recent Congressional Research Service report explained: \"A recess appointment expires at the end of the Senate's next session or when an individual (either the recess appointee or someone else) is nominated, confirmed, and permanently appointed to the position, whichever occurs first.
In practice, this means that a recess appointment may last up to nearly two years. If the President makes a recess appointment between sessions or between Congresses, that appointment will expire at the end of the following session. If he makes the appointment during a recess in the middle of a session, that appointment also will expire at the end of the following session.\" There is some debate as to when the \"end of the session\" actually occurs (whether it is when Congress adjourns for the year, or when the new Congress comes in on January 3rd).
So, if John Bolton receives a recess appointment at any point prior to the end of this current session of Congress, it would last only until the end of the next session of Congress- which will probably be the end of 2006, but definitely no later than January 3, 2007 (unless the Senate confirmed him in the interim).";
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There has been a great deal of attention paid to recess appointments to place judges on the federal bench.
Throughout American history, reportedly about 300 judicial nominations have been recess appointments. Among these was Thurgood Marshall, who President John Kennedy put on the U.S. Court of Appeals for the 2nd Circuit in 1961 because he was facing strong opposition.
Since the early 1980s, only three judges have been placed on the federal bench this way (the earlier mentioned Gregory, Pryor and Pickering), but there is still debate over whether or not it is appropriate. Jonathan Turley, in a 2004 Los Angeles Times OpEd, suggested that the Senate should reject any judicial nominee who is given a recess appointment.
One interesting note is that recess appointments have included 15 Supreme Court Justices, and five of them actually started participating in making decisions before the Senate confirmed them. These included three of President Dwight Eisenhower’s Supreme Court appointees: Chief Justice Earl Warren, William Brennan and Potter Stewart.
Stewart's recess appointment in 1958 was the last time a president appointed a Supreme Court nominee during a recess -- and the Senate passed a non-binding sense of the Senate resolution in 1960 that recess appointments shouldn't be made to the Supreme Court \"except under unusual circumstances and for the purpose of preventing or ending a demonstrable breakdown in the administration of the Court's business\" – which sounds a little like the current Gang of 14's 2005 \"extraordinary circumstances\" condition on filibustering. ";
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Since coming into office in 2001, President George W. Bush has made 105 recess appointments (as of 7/28/2005).
In January 2002, Bush issued recess appointments for two controversial nominees: Eugene Scalia (son of Supreme Court Justice Antonin Scalia) to be solicitor of the Labor Department and Otto Reich to be assistant secretary of state for Western Hemisphere affairs.
In the first two months of 2004 he issued two recess appointments to the federal appeals courts: Charles W. Pickering and William H. Pryor, Jr., whose nominations had been blocked by Democrats in the Senate. Bush's other recess appointments included members of the Nuclear Regulatory Commission and most recently, in April 2005, he appointed the members of the base closure commission through recess appointments (something his father had done back in January 1993 before leaving office).
President Bill Clinton invoked his power of recess appointments 140 times, including in August 1996 in order to install former Senator Wyche Fowler as ambassador to Saudi Arabia, and then in June 1999 he circumvented Senate Republicans by making a recess appointment of James C. Hormel to be ambassador to Luxembourg, the first openly gay man to serve as a U.S. ambassador.
Clinton’s pick to be assistant attorney general for civil rights, Bill Lann Lee, was blocked by Republicans for his views on affirmative action, and when the White House floated the idea of a recess appointment in 1997 there was a great deal of controversy. Clinton decided to name him \"acting\" assistant attorney general, thus avoiding a major debate, but three years later, in August 2000, Clinton issued a recess appointment for Lee. Then, in December 2000, Clinton issued a recess appointment of Roger Gregory to be a judge on the U.S. Court of Appeals for the 4th Circuit.
President Ronald Reagan issued 243 recess appointments during his two terms- 148 of them in his first four years. These included ambassadors, a secretary of energy, and probably the most controversial, were the members of the Legal Services Corporation, the federal agency he had sought to abolish and thus used his power to circumvent the Senate and put people on the board who were sympathetic to his views on the agency. ";
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| George W. Bush | 105 (91 intrasession) |
| Bill Clinton | 140 (53 intrasession) |
| George H. W. Bush | 77 (36 intrasession) |
| Ronald Reagan | 243 (75 intrasession) |
| Jimmy Carter | 68 (17 intrasession) |
| Gerald Ford | 12 (0 intrasession) |
| Richard Nixon | 41 (8 intrasession) |
| Lyndon Johnson | 36 |
| John Kennedy | 53 |
| Dwight Eisenhower | 193 |
| Harry Truman | 195 |
| Franklin Roosevelt | 89 |