Constitutional Purpose of Recess Appointments

by P.A. Madison on January 8th, 2012

Since recess appointments have been getting a great deal of press attention lately, and because it appears Obama and Congress don’t have a firm understanding of the actual text and history of the clause; I thought would quickly explain the constitutional purpose of the recess clause beginning with its earliest roots.

The recess clause to the Constitution was proposed by North Carolina delegate Richard Dobbs Spaight during the federal convention, who thought it might be a good idea for the federal Constitution to mimic the North Carolina Constitution in regards to recess appointments.

Recess appointments served an important function because the power to make appointments was generally shared by both the executive and the legislature who might have long recesses. It was common for many State legislative bodies to have biennial sessions, leaving potentially important vacancies to occur during recess of the legislative body, such as sheriffs and constables, to go for some time before being filled if there was no exception for the executive to make appointments while the legislature was not in session.

The language of the federal recess clause bears this truth in the words, “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.” Obviously appointing someone to fill a vacancy that is already before the Senate for their advice and consent cannot be considered a vacancy occurring during the next recess of the Senate. An 1845 Attorney General opinion confirms this: “If 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.”

Alexander Hamilton explained the recess clause this way:

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, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

Hamilton added in 1799 that, “[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 Senate.”

In conclusion, it would be rather absurd to treat the recess clause as a tool for the President to use to circumvent the Senates constitutional advice and consent role in approving appointments to fill vacancies, especially with the clear constitutional limitation of filling vacancies that occur only during a recess. Appointments for vacancies that occur during a Senate session can only be filled through the Senates advice and consent. The senate or court could remedy any illegal appointments to fill vacancies by the President that occur while the Senate is in session, or while the appointment is already before the Senate and the Senate goes into recess, by immediately declaring the appointment void.


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6 Responses | Leave a Comment
  1. DJArtz says:

    Since when does the text or historical purpose of a clause in the Constitution prevent President Obama, our “Constitutional Scholar” President, from doing whatever he damn well pleases. One of his first acts as President was appointing then-Senator Hilary Clinton as Secretary of State, notwithstanding the Emoluments Clause. Then he unilaterally approved the U.S. Military’s participation in Libya, even though the Constitution grants the power to Congress to make a declaration of war (though he is certainly not alone in that; G.H.W. Bush also was guilty of striking first and asking for Congressional approval later). Now he decides that the President, and not the Senate, gets to decide when the Senate is in Recess.

    “Constitution — We don’t need no stinkin’ Constitution!”

  2. Joe Ferri says:

    So, B-Rob, regarding your lead paragraph, time and precedent make what is false and improper true and proper for eternity.

  3. TG Ohio says:

    I can find no historical precedent of presidents filling vacancies during a senate recess with a nominee the Senate is already considering for approval. I think this Madison analysis is absolutely correct.

    • Greg in Atlanta says:

      Won’t stop some fools from falsely asserting there is precedent in appointing such nominees with a recess appointment.

  4. B-Rob says:

    Yours is an imminently reasonable interpretation, i.e., that the recess appointments clause can only be used to fill NEW openings while the Senate is in recess. The problem? It has not been so interpreted for the last 100 plus years. Cf. T. Roose It would be curious now to apply a novel interpretation, in the name of a “conservative” result, when no such objections have been made to previous GOPer recess appointments to pre-existing vacant positions.

    In addition, I would note that this would apply to the appointment of Richard Cordray, but not the appointment of one of the three members to the NLRB. Why? Because there were three seated members prior to the senate recess, then when Becker’s term expired, and the Board lost its quorum, that was a new opening on the NLRB, and available for recess appointment under your new interpretation of the clause.

    • KuhnKat says:

      B-Rob,

      your position then is that ALL activist rulings should be maintained forever no matter how they damage our Constitution and freedoms???

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