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A recess appointment occurs when the President of the United States fills a vacant Federal position during a recess of the United States Senate. The commission or appointment must be approved by the Senate by the end of the next session, or the position becomes vacant again. Recess appointments are authorized by Article II, Section 2 of the U.S. Constitution: "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."

According to Henry B. Hogue, at the Government and Finance Division of the Congressional Reference Service,^[1] "Recent Presidents have made both intersession (between sessions or Congresses) and intrasession (during a recess within a session) recess appointments. Intrasession recess appointments were unusual, however, prior to the 1940s. Intrasession recess appointments have sometimes provoked controversy in the Senate, and there is also an academic literature that has drawn their legitimacy into question." Law Professor Michael B. Rappaport argues ^[2] that the original meaning of the clause required that if an office is vacant while the Senate is in session, the Constitution expects the President to make an advice and consent appointment at that time. He also maintains the original meaning allows recess appointments to be made only during intersession recesses, which during the early days of the country lasted between 6 and 9 months and therefore required recess appointments to prevent important offices from remaining unfilled for long periods; the current interpretation allows appointments during recesses too brief to justify bypassing the Senate.

Historically, presidents tended to make recess appointments when the Senate was adjourned for lengthy periods. Since World War II, presidents have sometimes made recess appointments when Senate opposition appeared strong, hoping that the appointee might prove himself in office and allow opposition to dissipate. Most recently, however, as partisanship on Capitol Hill has grown, recess appointments have tended to solidify opposition to whoever is appointed.

Examples and use

Recess appointments have been made since the earliest days of the republic. President George Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. Because of Rutledge's political views and occasional mental illness, however, the Senate rejected his nomination, and his appointment lapsed. Rutledge subsequently attempted suicide.

On August 11, 1902, President Theodore Roosevelt named Oliver Wendell Holmes Jr. to the United States Supreme Court through a recess appointment. He was subsequently confirmed by the Senate on December 4, 1902. Roosevelt made several recess appointments during a one-day recess of the Senate.

New Jersey judge William J. Brennan was appointed to the United States Supreme Court by President Dwight D. Eisenhower in 1956 through a recess appointment. This was done partly with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern Catholic on the court. Brennan was promptly confirmed when the Senate came back into session. Eisenhower made two other recess appointments.

Ronald Reagan made 243 recess appointments during his two terms in office; George H. W. Bush made 77 during his single term, most notably Lawrence Eagleburger for U.S. Secretary of State in 1992, which sanctioned his role as "de facto" secretary since James Baker resigned.

President Bill Clinton made a recess appointment of Bill Lan Lee as Assistant Attorney General for civil rights, when it became clear that Lee's strong support of affirmative action would lead to Senate opposition. Similarly, when the Senate did not vote on his nomination of James Hormel to be Ambassador to Luxembourg, Clinton made a recess appointment. Many people felt that the Senate's inaction was because Hormel was openly gay, and when he was appointed became the first such person to serve as a U.S. ambassador. Clinton made 140 recess appointments over two terms. On one of the last days of his Presidency, Clinton used the recess appointment power to place Roger L. Gregory on the United States Court of Appeals for the Fourth Circuit. Gregory was the first African-American to serve on that court.

President George W. Bush recess appointed two judges, William Pryor and Charles Pickering to U.S. courts of appeals after their nominations were subjected to a Senate filibuster by opposition Democrats. Judge Pickering, of the Fifth Circuit, withdrew his name from consideration for renomination and retired when his recess appointment expired. Judge Pryor was subsequently confirmed to a lifetime appointment on the Eleventh Circuit. In his first six years in office, Bush has made 167 recess appointments.

On August 1, 2005, Bush made a recess appointment of John Bolton, to serve as U.S. representative to the United Nations.^[3] Bolton had also been the subject of a Senate filibuster. The filibuster concerned documents, which the White House refused to release, which Democrats suggested may contain proof of Bolton's abusive treatment and coercion of staff members, or of his improper use of National Security Agency communications intercepts regarding U.S. citizens. Having failed to win Senate confirmation, he resigned his office in December 2006 concurrently with the adjournment of the 109th Congress.^[4]

On April 4, 2007, during the Easter recess of Congress, Bush announced ^[5] three recess appointments. The first was Sam Fox to serve as U.S. Ambassador to Belgium. Fox's appointment had been thwarted in Congress because he had donated $50,000 to the Swift Boat Veterans for Truth during the 2004 presidential campaign, a group whose ads many Democrats blamed for John Kerry's loss.^[6]

The second was Susan Dudley to head the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget. The third recess appointment on April 4 was Andrew G. Biggs to serve as Deputy Commissioner of the Social Security Administration. ^[7] Biggs was investigated by Senate Democrats in 2005, while serving as Assistant Commissioner for the Social Security Administration concerning whether he violated a federal ban on congressional lobbying by federal employees when he edited the prepared testimony for a lobbyist appearing before a recent Democratic Policy Committee Social Security hearing according to John Stanton writing in Congress Daily. ^[8]

Attempts to prevent recess appointments

Starting in 2007, Senate Majority Leader Harry Reid worked to prevent further recess appointments by President Bush. A compromise was worked out for the August break, and Bush did not make any recess appointments. However, no agreement was reached for the two-week Thanksgiving break in November 2007, and as a result Reid decided to formally keep the Senate in session by having pro forma sessions every three days. Prior to this, there had been speculation that James Holsinger would receive a recess appointment as U.S. surgeon general.^[9]

References

See also

• Advice and consent