Recess Appointments: Questions and Answers

The Constitution
(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 Historical Debate

The provision for recess appointments was included in the Constitution to give presidents the power to fill vacancies when the Congress was out of session, which was frequent during the early years of the Republic's history. In odd-numbered years the Congress met from early December until early Spring or Summer. In even-numbered years the Congress met from early December until March 4th. These sessions were known respectively as the long and short sessions of Congress.

The question immediately arose as to how to interpret the recess provision of the Constitution. The potential for abuse was vast. Suppose a president decided to fire people he didn't like while the Congress was in recess, thereby creating vacancies which he could fill without the Senate's approval? Might a president use the power to appoint people whom the Senate had refused to confirm? Under these circumstances the Senate's role in the appointments process would become limited, tilting the balance of power decisively toward the executive.

George Washington, narrowly interpreting the provision, decided that he could only make recess appointments for vacancies that occurred during adjournments of Congress. But James Madison chose to interpret the provision broadly and from his day forward most presidents have seen fit to fill any vacancy in the government, whether it occurred while the Congress was adjourned or not.

Congressional Restrictions on Recess Appointments

During the Civil War Congress, concerned that the president was exercising too much power, passed a law forbidding people appointed during a recess from drawing a federal salary unless they were subsequently confirmed by the Senate. "Current law," says Professor Mackenzie, "applies this restriction more narrowly to any recess appointee selected to fill a vacancy that 'existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate.' The restriction does not apply [in certain cases]." If, for, example, a "vacancy arose within thirty days before the end of the session of the Senate; or if, at the end of the session, a nomination for the office ... was pending before the Senate .... " then the appointee would be entitled to a federal salary. John Bolton therefore is entitled to a federal salary as his nomination was pending before the Senate recessed.

Ronald Reagan's Use of the Recess Power

According to G. Calvin Mackenzie, a professor at Colby College, "The principal current use of recess appointments is for the strategic purpose of circumventing the confirmation process. President Ronald Reagan used recess appointment powers as part of his effort to undermine the Legal Services Corporation (LSCV), a government agency that provides legal assistance in civil cases for the poor. Reagan made no appointments to the board of directors of the LSC for most of his first year in office. Then, to prevent holdovers who were Jimmy Carter's appointees from determining the 1982 grants of the LSC, Reagan made seven recess appointments on the last day of 1981. Over the next few years, Reagan made several regular nominations to the LSC board, then withdrew them before a Senate confirmation decision. At the same time, he continued to fill vacancies with recess appointments. Reagan appointees were thus able to control the LSC between 1981 and 1984, even though not a single one was confirmed by the Senate."

Recess Court Appointments

Do presidents have the authority to make recess appointments to the courts? An appellate decision in 1962, United States v. Allocco, gave presidents this clear authority. A subsequent decision in 1983 confirmed that presidents possess this power. But few presidents have exercised it. In the whole history of the US Supreme Court presidents have made just fifteen recess appointments. (The last was Potter Stewart in 1959.) Only five took their seats on the Court before receiving full Senate confirmation. Of these five only one was rejected by the Senate: John Rutledge, who had been nominated by George Washington. (Rutledge had been impolitic in opposing the Jay Treaty, one of the Washington administration's chief accomplishments.)

Related Links

Associated Press: A Look at Presidential Recess Appointments

NPR: Recess Appointments in History