Constitution of the United States/Art. II/Sec. 2/Clause 3 Senate Recess

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Constitutional Law Treatise
Table of Contents
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Constitutional Law Outline
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article II Executive Branch

Section 2 Powers

Clause 3 Senate Recess

Clause Text
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.

Overview of Recess Appointments Clause[edit | edit source]

The Recess Appointments Clause, authorizing the President to make temporary appointments when the Senate is not in session, was adopted by the Constitutional Convention without dissent and without debate regarding the intent and scope of its terms. In the 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." 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. 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.

Two fundamental textual issues arise when interpreting the Recess Appointments Clause. The first is the meaning of the phrase "the Recess of the Senate." The Senate may recess both between and during its annual sessions,[1] but the time period during which the President may make a recess appointment is not clearly answered by the text of the Constitution. The second fundamental textual issue is what constitutes a vacancy that "may happen" during the recess of the Senate. If the words "may happen" are interpreted to refer only to vacancies that arise during a recess, then the President would lack authority to make a recess appointment to a vacancy that existed before the recess began. For over two centuries the Supreme Court did not address either of these issues,[2] leaving it to the lower courts and other branches of government to interpret the scope of the Recess Appointments Clause.[3]

The Supreme Court ultimately adopted a relatively broad interpretation of the Clause in National Labor Relations Board v. Noel Canning.[4] With respect to the meaning of the phrase "Recess of the Senate," the Court concluded that the phrase applied to both inter-session recesses and intra-session recesses. In so holding, the Court, finding the text of the Constitution ambiguous,[5] relied on (1) a pragmatic interpretation of the Clause that would allow the President to ensure the "continued functioning" of the federal government when the Senate is away,[6] and (2) "long settled and established [historical] practice" of the President making intra-session recess appointments.[7] The Court declined, however, to say how long a recess must be to fall within the Clause, instead holding that historical practice counseled that a recess of more than three days but less than ten days is "presumptively too short" to trigger the President's appointment power under the Clause.[8] With respect to the phrase "may happen," the majority, again finding ambiguity in the text of the Clause,[9] held that the Clause applied both to vacancies that first come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess.[10] In so holding, the Court again relied on both pragmatic concerns[11] and historical practice.[12]

Even under a broad interpretation of the Recess Appointments Clause, the Senate may limit the ability to make recess appointments by exercising its procedural prerogatives. The Court in Noel Canning held that, for the purposes of the Recess Appointments Clause, the Senate is in session when the Senate says it is, provided that, under its own rules, it retains the capacity to transact Senate business.[13] In this vein, Noel Canning provides the Senate with the means to prevent recess appointments by a President who attempts to employ the "subsidiary method" for appointing officers of the United States (i.e., recess appointments) to avoid the "norm"[14] for appointment (i.e., appointment pursuant to the Article II, Section 2, Clause 2).[15]

Recess Appointments of Article III Judges[edit | edit source]

Federal judges clearly fall within the terms of the Recess Appointments Clause, in the sense that the Clause broadly authorizes temporary appointments for "all Vacancies." Nonetheless, other constitutional provisions could suggest hesitation before applying the Clause to Article III judges--although historically, Presidents have in fact made recess appointments to Article III courts.[16] The constitutional concern stems from the fact that Article III judges are appointed "during good behavior," subject only to removal through impeachment.[17] A judge, however, who is given a recess appointment may be "removed" by the Senate's failure to advise and consent to his appointment; moreover, on the bench, prior to Senate confirmation, he or she may be subject to influence not felt by other judges. Although the Supreme Court has not considered this issue, some federal appeals courts have rejected constitutional attacks upon the status of federal judges given recess appointments.[18]
  1. For a discussion of the procedural requirements that apply to "adjourn[ments]," see Art. I, Sec. 5, Cl. 4: Adjournment of Congress.
  2. See NLRB v. Noel Canning, 573 U.S. 513, 526 (2014).
  3. For lower court decisions on the Recess Appointments Clause, see, e.g., Evans v. Stephens, 387 F.3d 1220, 122627 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005); United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986); United States v. Allocco, 305 F.2d 704, 712 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963); Farrow, 3 Fed. 112 (C.C.N.D. Ga. 1880). For prior Executive Branch interpretations of the Recess Appointments Clause, see 25 Op. OLC 182 (2001); 20 Op. OLC 124, 161 (1996); 16 Op. OLC 15 (1992); 13 Op. OLC 271 (1989); 6 Op. OLC 585, 586 (1982); 3 Op. OLC 314, 316 (1979); 41 Op. Att'y Gen. 463 (1960); 33 Op. Att'y Gen. 20 (1921); 30 Op. Att'y Gen. 314 (1914); 26 Op. Att'y Gen. 234 (1907); 23 Op. Att'y Gen. 599 (1901); 22 Op. Att'y Gen. 82 (1898); 19 Op. Att'y Gen. 261 (1889); 18 Op. Att'y Gen. 28 (1884); 16 Op. Att'y Gen. 523 (1880); 15 Op. Att'y Gen. 207 (1877); 14 Op. Att'y Gen. 563 (1875); 12 Op. Att'y Gen. 455 (1868); 12 Op. Att'y Gen. 32 (1866); 11 Op. Att'y Gen. 179 (1865); 10 Op. Att'y Gen. 356 (1862); 4 Op. Att'y Gen. 523 (1846); 4 Op. Att'y Gen. 361 (1845); 3 Op. Att'y Gen. 673 (1841); 2 Op. Att'y Gen. 525 (1832); 1 Op. Att'y Gen. 631, 63334 (1823). For the early practice on recess appointments, see George Haynes, The Senate of the United States 77278 (1938).
  4. Noel Canning, 573 U.S. at 522-50 (2014).
  5. Id. at 526-29. More specifically, the Court found nothing in dictionary definitions or common usage contemporaneous to the Constitution that would suggest that an intra-session recess was not a recess. The Court noted that, while the phrase "the Recess" might suggest limiting recess appointments to the single break between sessions of Congress, the word "the" can also be used "generically or universally," see, e.g., Art. I, Sec. 3, Clause 5 Officers (directing the Senate to choose a President pro tempore "in the Absence of the Vice-President"), and that there were examples of "the Recess" being used in the broader manner at the time of the founding. Noel Canning, 573 U.S. at 526-29.
  6. Noel Canning, 573 U.S. at 528. ("The Senate is equally away during both an inter-session and an intra-session recess, and its capacity to participate in the appointments process has nothing to do with the words it uses to signal its departure.").
  7. The Court noted that Presidents have made "thousands" of intra-session recess appointments and that presidential legal advisors had been nearly unanimous in determining that the clause allowed these appointments. Id. at 529.
  8. Id. at 538. The Court left open the possibility that some very unusual circumstance, such as a national catastrophe that renders the Senate unavailable, could require the exercise of the recess appointment power during a shorter break. Id.
  9. The Court noted, for instance, that Thomas Jefferson thought the phrase in question could point to both vacancies that "may happen to be" during a recess as well as those that "may happen to fall" during a recess. Id. at 539 (emphasis added).
  10. Id. at 518-20.
  11. Id. at 542-43 ("[W]e believe the narrower interpretation risks undermining constitutionally conferred powers [in that] . . . [i]t would prevent the President from making any recess appointment that arose before a recess, no matter who the official, no matter how dire the need, no matter how uncontroversial the appointment, and no matter how late in the session the office fell vacant.").
  12. Id. at 543 ("Historical practice over the past 200 years strongly favors the broader interpretation. The tradition of applying the Clause to pre-recess vacancies dates at least to President James Madison.").
  13. Id. In the context of Noel Canning, the Court held that the Senate was in session even during a pro forma session, a brief meeting of the Senate, often lasting minutes, in which no legislative business is conducted. Id. at 554-56. Because the Journal of the Senate (and the Congressional Record) declared the Senate in session during those periods, and because the Senate could, under its rules, have conducted business under unanimous consent (a quorum being presumed), the Court concluded that the Senate was indeed in session. In so holding, the Court deferred to the authority of Congress to "determine the Rules of its Proceedings," see Art. I, Sec. 5, Clause 2 Rules, relying on previous case law in which the Court refused to question the validity of a congressional record. Noel Canning, 573 U.S. at 555 (citing United States v. Ballin, 144 U.S. 1, 5 (1892)).
  14. Noel Canning, 573 U.S. at 556-57.
  15. It should be noted that, by an act of Congress, if a vacancy existed when the Senate was in session, the ad interim appointee, subject to certain exceptions, may receive no salary until he has been confirmed by the Senate. 5 U.S.C. § 5503 (2012). By targeting the compensation of appointees, as opposed to the President's recess appointment power itself, this limitation acts as an indirect control on recess appointments, but its constitutionality has not been adjudicated. A federal district court noted that "if any and all restrictions on the President's recess appointment power, however limited, are prohibited by the Constitution," restricting payment to recess appointees might be invalid. Staebler v. Carter, 464 F. Supp. 585, 596 n.24 (D.D.C. 1979).
  16. See generally, e.g., Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377 (2005).
  17. See Art. III, Sec. 1: Overview of Good Behavior Clause.
  18. United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986). Other cases holding that the President's power under the Recess Appointments Clause extends to filling judicial vacancies in Article III courts include United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963), and Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005). The opinions in the courts of appeals provide a wealth of data on the historical practice of giving recess appointments to judges, including the developments in the Eisenhower Administration, when three Justices, Earl Warren, William Brennan, and Potter Stewart, were so appointed and later confirmed after participation on the Court. The Senate in 1960 adopted a "sense of the Senate" resolution suggesting that the practice was not a good idea. 106 Cong. Rec. 18130-18145 (1960).