Delegates to the Constitutional Convention understood that Congress would not be in session to give advice and consent to a presidential nomination. Accordingly, they provided in the Recess Appointments Clause of Article 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 the next Session.” In the early years of the Republic, congressional sessions lasted only a few months, and Presidents often made recess appointments during the long periods when Congress was in recess or adjournment. Without the Recess Appointments Clause, important governmental functions and responsibilities would have been hamstrung or ground to a halt. There was virtually no discussion of the clause; delegates adopted the language as presented. Alexander Hamilton’s essay, Federalist No. 67, adds little to the understanding of the provision.
With little in the Convention record to assess the aims of the Framers, important questions emerged about the limits of the President’s recess appointments power. The ambiguity in of the phrase, “Vacancies that may happen during the Recess of the Senate,” generated controversy from the beginning. Did it mean, literally, vacancies that may occur during a recess? Or did it mean that the President might fill vacancies that occurred while the Senate was in session? President George Washington took a narrow view of the clause and made recess appointments only when they occurred during a Senate recess. Washington’s successors have employed a broader understanding of the clause. Since the Presidency of James Madison, most Presidents have adopted a more expansive view and, despite Senate opposition to such interpretation, in using recess appointments to fill any existing vacancy, including those that occurred while the Senate was in session. A long list of opinions issued by Attorneys General has embraced the Madisonian position. In 1823, for example, Attorney General Wirt concluded that the broader version of the clause satisfied the reason, spirit and purpose of the Constitution, which was to keep offices filled.
The struggle between the President and Senate over the meaning of “recess” has driven each side to seek means of leveraging the other. Before congressional sessions were lengthened, for example, presidents often exerted political advantage in the use of recess appointments and would sometimes wait until Congress had adjourned before filling a vacancy. When the Senate returned from recess, the President submitted the name of the appointee for confirmation. The fact that the appointee had been on the job for many months, accumulating valuable experience and expertise, made it difficult for the Senate to reject the nomination. Observers of the process concluded that frequent use of recess appointments was strategic, a means of circumventing the confirmation process. The Senate, fearing the loss of its advice and consent role retaliated by persuading Congress to pass statutes denying a salary to those recess appointees named to posts that had become vacant while the Senate was in session and able to approve or reject the nominee.
Recess appointments of federal judges have presented a special concern because they raise the possibility of litigants facing a judge who does not have a lifetime appointment and who will soon be reviewed for confirmation by the Senate. The virtues of judicial impartiality, integrity and objectivity may be more difficult to satisfy under those circumstances, but federal courts have upheld presidential authority to make recess appointments to the bench.
The possibility in February of 2016 that President Barack Obama might make exercise his recess power to appoint DC Circuit Court of Appeals Judge, Merrick Garland, to fill the vacancy created by the death of Justice Antonin Scalia, triggered debates about the propriety of naming someone to the Court without Senate confirmation. While President Obama declined to assert his authority, despite the public statements of GOP Senators that they would not hold hearings on the nomination of Garland, he would have been supported by historical practice. There have been 15 recess appointments to the Supreme Court, including the most recent, Potter Stewart, appointed by President Eisenhower in 1959. Of the 15, only five actually participated in the work before winning Senate confirmation. Of the five who did assume a seat on the High Bench before confirmation, four were later confirmed by the Senate and one, John Rutledge, nominated in 1795 by President Washington, was denied confirmation by the Senate.
President Obama’s reluctance to make Chief Judge Garland the first recess appointment to the Court in more than four decades, probably was influenced by a 1960 Senate resolution—a year after Eisenhower’s appointment of Stewart—introduced by Sen. Philip A. Hart, which stated that recess appointments to the Court should be made except under “unusual circumstances and for the purpose of preventing or ending a demonstrable breakdown in the administration of the Court’s business.” While the Hart Resolution is not binding, presidents since its passage have refrained from making recess appointments to the Court.
The controversial questions surrounding the Recess Appointments Clause were, for the first time in American history, addressed by the Supreme Court in 2014, in NLRB v. Noel Canning. In Canning, the Court reviewed President Obama’s recess appointees to the NLRB. The Court upheld a lower court ruling that Obama’s use of the recess power. The Court held that the Recess Appointments Clause authorizes the President to fill any vacancy during recess—whether occurring during or between sessions of Congress—of sufficient length. However, for purposes of the clause, the Senate is in session whenever it indicates it is, as long as –under its own rules—it retains the capacity to conduct Senate business.