This report supplies brief answers to some frequently asked questions regarding recess appointments. When the Senate is in recess, the President may make a temporary appointment, called a recess appointment, to any such position without Senate approval (Article II, Section 2, Clause 3)

Hogue, Henry B.

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1 An opinion by Attorney General William Wirt in 1823 concerning the meaning of the word“happen” in the clause.  In part, he stated, “The substantial purpose of the constitution was tokeep these offices filled; and the powers adequate to this purpose were intended to be conveyed.”1 Op. A.G. at 632.Congressional Research Service ˜ The Library of CongressCRS Report for CongressReceived through the CRS WebOrder Code RS21308Updated August 25, 2006Recess Appointments: Frequently Asked QuestionsHenry B. HogueAnalyst in American National GovernmentGovernment and Finance DivisionSummaryUnder the Constitution (Article II, Section 2, Clause 2), the President and theSenate share the power to make appointments to high-level policy-making positions infederal departments, agencies, boards, and commissions.  Generally, the Presidentnominates individuals to these positions, and the Senate must confirm them before hecan appoint them to office.  The Constitution also provides an exception to this process.When the Senate is in recess, the President may make a temporary appointment, calleda recess appointment, to any such position without Senate approval (Article II, Section2, Clause 3).  This report supplies brief answers to some frequently asked questionsregarding recess appointments.  It will be updated as events warrant.What Is the Purpose of a Recess Appointment?The Constitution states that “[t]he President shall have Power to fill up all Vacanciesthat may happen during the Recess of the Senate, by granting Commissions which shallexpire at the End of their next Session” (Article 2, Section 2, Clause 3).  The records ofdebate at the Constitutional Convention and the Federalist Papers provide little evidenceof the framers’ intentions in the recess appointment clause.  Opinions by later AttorneysGeneral, however, suggested that the clause was meant to allow the President to maintainthe continuity of administrative government through the temporary filling of officesduring periods when the Senate was not in session, at which time his nominees could notbe considered or confirmed.1  This interpretation is bolstered by the fact that both Housesof Congress had relatively short sessions and long recesses during the early years of theRepublic.  In fact, until the beginning of the 20th century, Congress was, on average, insession less than half the year.  Throughout the history of the republic, Presidents havealso sometimes used the recess appointment power for political reasons.  For example,CRS-22 For more, see CRS Report RL33310, Recess Appointments Made by President George W. Bush,January 20, 2001-June 5, 2006, by Henry B. Hogue and Maureen Bearden.3 Pryor was subsequently confirmed by the Senate and appointed to the position permanently.recess appointments enable the President to temporarily install an appointee who probablywould not be confirmed by the Senate.How Often Have Recent Presidents Made Recess Appointments?President William J. Clinton made 139 recess appointments during his eight yearsin office, 95 to full-time positions.  During his first five years in office, President GeorgeW. Bush made 127 recess appointments, of which 77 were to full-time positions.2How Long Does a Recess Appointment Last?A recess appointment expires at the end of the Senate’s next session or when anindividual (either the recess appointee or someone else) is nominated, confirmed, andpermanently appointed to the position, whichever occurs first.  In practice, this means thata recess appointment may last for up to nearly two years.  If the President makes a recessappointment between sessions or between Congresses, that appointment will expire at theend of the following session.  If he makes the appointment during a recess in the middleof a session, that appointment also will expire at the end of the following session.  In thiscase, the duration of the appointment will include the balance of the session in progressplus the full length of the session that follows.  A comparison of two recess appointments by President George W. Bush illustratesthe difference in recess appointment duration that results from the timing of anappointment.  On January 16, 2004, during the recess between the first and secondsessions of the 108th Congress, President Bush recess-appointed Charles W. Pickering tothe U.S. Court of Appeals for the Fifth Circuit.  Pickering’s appointment expired onDecember 8, 2004, at the end of the second session of the 108th Congress.  Several weeksafter the Pickering appointment, on February 20, 2004, President Bush recess-appointedWilliam H. Pryor to the U.S. Court of Appeals for the Eleventh Circuit.  This recessappointment took place during a 10-day adjournment of the Senate within the secondsession of the 108th Congress.  Consequently, Pryor’s recess appointment would haveexpired at the end of the first session of the 109th Congress, on December 21, 2005.3Although the Pickering and Pryor recess appointments were only several weeks apart,Pryor could have served a year longer because his appointment was made during anintrasession recess.The meaning of the phrase “End of their [the Senate’s] next session” in theConstitution’s recess appointment clause is not precisely defined.  A Senate session isusually considered to end at the time of sine die adjournment.  The Senate could,however, be called back into session after sine die adjournment if certain conditions havebeen included in the adjournment resolution.  Nonetheless, sine die adjournment isCRS-34 See, for example, 41 Op. A.G. 463 (1960), which, in the context of a discussion of theexpiration of recess appointments, refers to sine die adjournment as the end of the Senate’ssession.5 Compare Staebler v. Carter, 464 F. Supp. 585 (1979), and Wilkinson v. L.S.C., 865 F. Supp. 891(1994).6 See Mackie v. Clinton, 827 F. Supp. 56 (1993).generally considered to be the end of the Senate’s session for purposes of the expirationof a recess appointment.4For the Purposes of Recess Appointments, What Constitutes a Vacancy?The wording of the constitutional provision allowing recess appointments leads toa question about which positions could actually be filled that way.  The question revolvesaround the phrase “Vacancies that may happen during the Recess of the Senate.”  Does“happen” mean “happen to exist” or “happen to occur”?  The first meaning would allowthe President to make recess appointments to any position that becomes vacant prior tothe recess and continues to be vacant during the recess, as well as positions that becomevacant during the recess.  The second meaning would allow recess appointments only topositions that become vacant during the recess.  Although this question was a source ofcontroversy in the early nineteenth century, Attorneys General and courts have now longsupported the first, broader interpretation of the phrase. A second question regarding the meaning of “Vacancies” arises in connection withrecess appointments to fixed term positions, such as those often associated with regulatoryboards and commissions.  In order to promote continuity of operations, Congress hasoften included “holdover” provisions in the statutory language creating such positions.The question then arises whether or not a position is vacant, for the purposes of a recessappointment, if an individual is continuing to serve, under a holdover provision, past theend of his or her term.  The courts have varied in their rulings on this matter, and it hasnot been settled definitively by an appellate court.  Based on decisions to date, however,the answer appears to hinge on the specific language of the holdover provision.  Forexample, if the language is mandatory (the officeholder “shall continue to serve after theexpiration of his term”), rather than permissive (“may continue to serve”), the position hasbeen seen by the courts as not vacant, and therefore not available for a recessappointment.5  When the provision includes a specific time limit for the holdover, suchas one year, the position has also been seen as not vacant.6What Is the Difference Between the Authority of a Confirmed Appointee and That of a Recess Appointee?Both carry the same legal authority.  The principal difference is the potential lengthof the appointment. The recess appointment is temporary (see above) and the confirmedappointment continues until the end of the term or at the pleasure of the President,depending on the statutory provisions creating the position.CRS-47 Mackie v. Clinton, Civil Action 93-0032-LFO, July 2, 1993.8 Congress placed limits on payments to recess appointees as far back as 1863. The currentprovisions date from 1940 (ch. 580, 54 Stat. 751, 5 U.S.C. 56, revised, and recodified at 5 U.S.C.5503, by P.L. 89-554, 80 Stat. 475). For a legal history and overview of recess appointments, seeCRS Report RL33009, Recess Appointments: A Legal Overview, by T.J. Halstead.Does the Recess Appointee Receive the Same Rate of Pay as the Person Vacating the Position?Yes.  However, two provisions of law may prevent a recess appointee from beingpaid under certain circumstances.  (See below, “Are there any legal constraints on thePresident’s recess appointment power?”)How Long Must the Senate Be in Recess Before a President May Make a Recess Appointment?The Constitution does not specify the length of time that the Senate must be in recessbefore the President may make a recess appointment.  Over the last century, as shorterrecesses have become more commonplace, Attorneys General and the Office of LegalCounsel have offered differing views on this issue.  Most recently, in 1993, a Departmentof Justice brief implied that the President may make a recess appointment during a recessof more than three days.7  Appointments made during short recesses (less than 30 days),however, have sometimes aroused controversy, and they may involve a political cost forthe President.  Controversy has been particularly acute in instances where Senatorsperceive that the President is using the recess appointment process to circumvent theconfirmation process for a nominee who is opposed in the Senate.  Although PresidentTheodore Roosevelt once made recess appointments during an intersession recess of lessthan one day, the shortest length of a recess during which appointments have been madeduring the past 20 years was 10 days.Are There Any Legal Constraints on the President’s Recess Appointment Power?There is no qualification to the President’s “Power to fill up all Vacancies...” in theconstitutional provision.  Neither is there a statutory constraint on this power.  There are,however, two points of statutory law that may prevent a recess appointee from being paid.Under 5 U.S.C. 5503(a), if the position to which the President makes a recessappointment fell vacant while the Senate was in session, the recess appointee may not bepaid from the Treasury until he or she is confirmed by the Senate.  The salary prohibitiondoes not apply:  (1) if the vacancy arose within 30 days before the end of the session; (2)if a nomination for the office (other than the nomination of someone given a recessappointment during the preceding recess) was pending when the Senate recessed; or (3)if a nomination was rejected within 30 days before the end of the session and anotherindividual was given the recess appointment.  A recess appointment falling under any oneof these three exceptions must be followed by a nomination to the position not later than40 days after the beginning of the next session of the Senate.8  For this reason, when arecess appointment is made, the President generally submits a new nomination to theposition even when an old nomination is pending.  In addition, although recess appointeeswhose nominations to a full term are subsequently rejected by the Senate may continueCRS-59 Regarding Senate controversy, see Sen. George Mitchell, “The Senate’s ConstitutionalAuthority to Advise and Consent to the Appointment of Federal Officers,” CongressionalRecord, vol. 139, July 1, 1993, p. 15266; and Senate Legal Council, “Memorandum of UnitedStates Senate as Amicus Curiae in Support of Plantiffs’ Motion, and in Opposition toDefendants’ Motions, for Summary Judgment on Count Two,” U.S. District Court for the Districtof Columbia, Mackie v. Clinton, C.A. No. 93-0032-LFO, Congressional Record, vol. 139, July1, 1993, pp. 15267-15274.   For academic literature, see, for example, Michael A. Carrier, “WhenIs the Senate in Recess for Purposes of the Recess Appointments Clause?” Michigan LawReview, vol. 92, June 1994.10 P.L. 109-115, Div. A, Sec. 809; 119 Stat. 2497.to serve until the end of their recess appointment, a provision routinely included in anappropriations act may prevent them from being paid after their rejection.  (See below,“What happens if the nomination of someone holding a recess appointment is rejected bythe Senate?”)Is There Any Difference Between Recess Appointments Made Between Sessions and Those Made During a Recess Within a Session?Recent Presidents have made both intersession (between sessions or Congresses) andintrasession (during a recess within a session) recess appointments.  Intrasession recessappointments were unusual, however, prior to the 1940s.  Intrasession recessappointments have sometimes provoked controversy in the Senate, and there is also anacademic literature that has drawn their legitimacy into question.9  Intrasession recessappointments are usually of longer duration than intersession recess appointments.  (Seeabove, “How long does a recess appointment last?”)Must a Recess Appointee Be Nominated to the Position as Well?The President is not required to nominate the recess appointee to the appointedposition.  The President will sometimes use a recess appointment to fill a position whilea different nominee to the same position is going through the confirmation process in theSenate.  Under certain conditions, however, a provision of law may prevent a recessappointee from being paid from the Treasury if he or she has not been nominated to theposition. (See above, “Are there any legal constraints on the President’s recessappointment power?”)What Happens If the Nomination of Someone Holding a Recess Appointment Is Rejected by the Senate?Rejection by the Senate does not end the recess appointment.  Payment to theappointee may be prevented, however, by a recurring provision of the Transportation,Treasury, Housing and Urban Development, the Judiciary, and Independent AgenciesAppropriations Act.  The provision reads, “No part of any appropriation for the currentfiscal year contained in this or any other Act shall be paid to any person for the filling ofany position for which he or she has been nominated after the Senate has voted not toapprove the nomination of said person.”10  This provision has been part of this annualfunding activity for at least 50 years.  As a practical matter, nominations are rarelyrejected by a vote of the full Senate.CRS-611 5 U.S.C. 5503(a)(2).12 15 Op. O.L.C. 93 (1991).  See also 6 Op. O.L.C. 585 (1982); 41 Op. A.G. 463 (1960).13 Adam Liptak, “Judge Appointed by Bush After Impasse in Senate Retires,” The New YorkTimes, Dec. 10, 2004, p. A20.14 For more, see CRS Report RL31112, Recess Appointments of Federal Judges, by Louis Fisher;and CRS Report RS22039, Federal Recess Judges, by Louis Fisher.Can the President Make Successive Recess Appointments to the Same Position?The President may make successive recess appointments of the same or a differentindividual to a position.  Payment from the Treasury to the appointee may be limited,however, under 5 U.S.C. 5503.  (See also above, “Are there any legal constraints on thePresident’s recess appointment power?”)  Subsection 5503(a) provides, in part, that:Payment for services may not be made from the Treasury of the United States to anindividual appointed during a recess of the Senate to fill a vacancy in an existingoffice, if the vacancy existed while the Senate was in session and was by law requiredto be filled by and with the advice and consent of the Senate, until the appointee hasbeen confirmed by the Senate.  The provision allows three exemptions to this pay prohibition, two of which wouldnot apply in this situation.  Under the remaining exemption, “if, at the end of the session,a nomination for the office, other than the nomination of an individual appointed duringthe preceding recess of the Senate, was pending before the Senate for its advice andconsent,” the prohibition would not apply.11  The clause “other than the nomination of anindividual appointed during the preceding recess of the Senate” probably would preventpayment in the case of most successive recess appointments.  This interpretation has beensupported by the Office of Legal Counsel (OLC), Department of Justice, which stated in1991, “Although its language is far from clear, section 5503(a) has been interpreted asprohibiting the payment of compensation to successive recess appointees.”12  Can a Recess Appointment Be Used to Fill a Vacancy on the Federal Bench?Presidents have long made recess appointments to the federal judiciary.  In recentyears, however, recess appointments of federal judges have been unusual andcontroversial.  Over the past 20 years, there have been only three recess appointments tofill Article III judgeships.  President William J. Clinton named Roger L. Gregory to theFourth Circuit on December 27, 2000, as a recess appointment, a step that was met bysome opposition in the Senate.  Ultimately, Gregory was re-nominated by PresidentGeorge W. Bush and confirmed by the Senate.  On January 16, 2004, President GeorgeW. Bush recess-appointed Charles W. Pickering to the U.S. Court of Appeals for the FifthCircuit.  Pickering’s appointment expired on December 8, 2004, at the end of the secondsession of the 108th Congress, and he retired.13  On February 20, 2004, President Bushnamed William H. Pryor to the Eleventh Circuit Court of Appeals.  Pryor wassubsequently confirmed by the Senate.14   

Recess Appointments: Frequently Asked Questions

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Recess Appointments: Frequently Asked Questions

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