Under the Adjournments Clause of the Constitution, however, such a determination requires the consent of the House. Constitution, Art. The clause also provides for the appointment of inferior officers in three other ways, subject to congressional discretion: "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
As discussed in detail later in this report, each Congress covers a two-year period, generally composed of two sessions. The Federalist Papers , ed. Hamilton described the Recess Appointment Clause as a "supplement to the [Appointments Clause] for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.
An opinion by Attorney General William Wirt in concerning the meaning of the word "happen" in the clause provides one example. In part, he stated, "The substantial purpose of the constitution was to keep these offices filled; and the powers adequate to this purpose were intended to be conveyed. Washington: GPO, , pp. As discussed later in this report, three of these recess appointments were found to be constitutionally invalid by the U.
The evolution of this use of scheduling practices is discussed in greater detail in the appendixof this report. Pro forma sessions are short meetings of the Senate or the House held for the purpose of avoiding a recess of more than three days and therefore the necessity of obtaining the consent of the other house. Business has sometimes been conducted during pro forma sessions, however.
For example, on December 23, , during the period under discussion here, the Senate convened as scheduled and, by unanimous consent, agreed to a process for passage of the Temporary Payroll Tax Cut Continuation Act of Sen. Noel Canning , S. Regarding Senate controversy, see Sen.
District Court for the District of Columbia, Mackie v. Clinton , Civ. Action No. For academic literature, see, for example, Michael A. As previously discussed, the Justice Department argued that the determination of whether a "recess" is underway is not merely a matter of observing formal Senate scheduling.
Rather, the President may also determine whether a recess is underway by assessing whether the Senate is available to participate in the advice and consent process. Court of Appeals for the D. Circuit held that, for purposes of the Recess Appointments Clause, "the Recess" means only intersession recesses.
Noel Canning v. Nat'l Labor Relations Bd. A May 16, , decision of the U. Court of Appeals for the Third Circuit also held that the President's recess appointment power extends only to intersession recesses. National Labor Relations Board v.
New Vista Nursing and Rehabilitation, No. May 16, The Court stated that a Senate recess of 3 days is "is not long enough to trigger the President's recess appointment power," and a recess of more than 3 days but less than 10 is "presumptively too short to fall within the Clause" but "leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break.
These include U. Supreme Court justice positions, and judgeships for the U. Neil A. See entry for Charles Willis Pickering Sr. For the purposes of this report, a related nomination was defined as a nomination, by the appointing President, to the position to which the recess appointment was made. Under 5 U.
The salary prohibition does not apply if 1 the vacancy arose within 30 days of the end of the session; 2 a nomination for the office other than the nomination of someone given a recess appointment during the preceding recess was pending when the Senate recessed; or 3 a nomination was rejected within 30 days of the end of the session and another individual was given the recess appointment.
A recess appointment falling under any one of these three exceptions must be followed by a nomination to the position not later than 40 days after the beginning of the next session of the Senate. Two measures of central tendency are presented here: the mean, or average, and the median. The mean is the more familiar measure, and it was calculated by adding together the elapsed times for all of the cases and dividing the resulting sum by the total number of cases 32—each appointment that had been preceded by a nomination is a case in this instance.
The median is the middle number in a set of observations or, in this case, because of an even number of observations, the average of the two middle numbers.
In data sets where the data are skewed because of a limited number of extreme values, the median is often considered to be the more accurate of the two measures of central tendency. This clause provides that "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days Under congressional precedents, Sunday is considered a "dies non," or a day on which the two chambers are not expected to meet, for purposes of determining whether Congress has adjourned for "not more than three days" with regard to the Adjournment Clause.
Under House precedents, "The House of Representatives in adjourning for not more than three days must take into the count either the day of adjourning or the day of the meeting, and Sunday is not taken into account in making this computation. Senate practice appears to be consistent with this approach. Floyd M.
Riddick and Alan S. Clinton, F. Hereinafter cited as "Justice Department Brief. As noted in footnote 29 , the two chambers have each recessed for a four-day weekends without the consent of the other under the rationale that Sunday is not counted under such circumstances. Modern resolutions also typically include provisions allowing some combination of the elected leaders in each house, such as the Speaker of the House and the majority leader of the Senate, acting jointly after consultation with the minority leaders in each chamber, to reconvene their respective chambers sooner.
It appears that some such practice was considered, but not implemented, during the s and s. While the nomination of Robert H. Byrd threatened to use the practice to prevent President Ronald W.
Reagan from making a recess appointment to that body: "I would say that if there is any thought, that there will be a recess appointment of a Supreme Court Justice, such an approach will not be feasible, and the administration ought to know it. I would not adjourn the Senate. If it comes to that, we will go into pro forma meetings, and we will be here and ready to do business if need be. There are indications that Senator Byrd had raised this possibility in communications with President Reagan in , as well.
In response to certain recess appointments by President William J. Clinton in , one Republican Senator reportedly stated, "What we can do—if they're appointments that he should not make—is just not go into recess We'll just go into pro forma. In remarks on the Senate floor, the Senator indicated that a threat of this practice had been part of recess appointment negotiations in between Senator Byrd and President Reagan: "He [Byrd] extracted from him [Reagan] a commitment in writing that he would not make recess appointments and, if it should become necessary because of extraordinary circumstances to make recess appointments, that he would have to give the list to the majority leader For example, by unanimous consent, the Senate agreed, on August 2, , that it would "recess and convene for pro forma session only, with no business conducted" on a number of dates in August and early September, including August 5, Sen.
It is established practice in the Senate that an order entered by unanimous consent can be superseded by a subsequent unanimous consent order. When the practice under discussion here was first used, during the th Congress, Congress and the White House were controlled by different parties.
During the th Congress, when the practice was not used, the two institutions were controlled by the same party. During the th and th Congresses, the Senate and the White House were controlled by one party, and the House was controlled by the other.
During the th Congress, the arrangements returned to those under the th Congress: the White House and Congress were controlled by different parties. For example, H. A copy of this letter is available from the author of this report upon request. In a January 25, , decision, the U. It also held that only those vacancies that occurred rather than merely existed during a recess could be filled through appointment during that recess. This court did not render a holding on the timing of a vacancy relative to a recess during which it may be filled through recess appointment.
In addition to the issues discussed here, the Court addressed ancillary questions that had been raised in lower court proceedings. It held that the President's recess appointment power extends to both intersession and intrasession recesses, and it concluded that the recess appointment power can be used to fill both vacancies that initially occur during a recess and those that arise when the Senate is in session. The opinion gave as an example of an unusual circumstance an instance such as "a national catastrophe … that renders the Senate unavailable but calls for an urgent response.
Topic Areas About Donate. Recess Appointments Made by President Barack Obama June 11, — September 7, R Under the Constitution, the President and the Senate share the power to make appointments to high-level politically appointed positions in the federal government.
This report will not be updated. Download PDF. Download EPUB. Appendixes Appendix. Summary Under the Constitution, the President and the Senate share the power to make appointments to high-level politically appointed positions in the federal government.
Author Contact Information [author name scrubbed], Specialist in American National Government [email address scrubbed] , [phone number scrubbed]. Footnotes 1. Pryor was subsequently confirmed by the Senate and appointed to the position permanently. See below for more detail. It organizes the public into nine distinct groups, based on an analysis of their attitudes and values. Even in a polarized era, the survey reveals deep divisions in both partisan coalitions. Use this tool to compare the groups on some key topics and their demographics.
Pew Research Center now uses as the last birth year for Millennials in our work. President Michael Dimock explains why. About Pew Research Center Pew Research Center is a nonpartisan fact tank that informs the public about the issues, attitudes and trends shaping the world. It conducts public opinion polling, demographic research, media content analysis and other empirical social science research.
Pew Research Center does not take policy positions. It is a subsidiary of The Pew Charitable Trusts. Newsletters Donate My Account. Intrasession recess appointments have sometimes provoked controversy in the Senate, and some academic literature also has called their legitimacy into question. Notwithstanding the legal opinions and practices of the preceding decades, a Department of Justice legal opinion and two federal appeals court decisions related to four controversial recess appointments made by President Barack Obama on January 4, , raised questions about what a "recess" is with regard to the recess appointment power.
Supreme Court addressed these questions. It held that the President's recess appointment power extends to both intersession and intrasession recesses. The Court also held that the President may use the recess appointment power essentially only during a recess of 10 days or longer. A Senate recess of 3 days "is not long enough to trigger the President's recess appointment power," and a recess of more than 3 days but less than 10 is "presumptively too short to fall within the Clause" but "leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break.
Furthermore, the Court concluded that, for purposes of the Recess Appointments Clause, "the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. Under the Adjournments Clause of the Constitution, however, such a determination requires the consent of the House. The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over time, the Department of Justice, through opinions of Attorneys General and the Office of Legal Counsel, has expressed differing views on this question.
Prior to , no settled understanding appeared to exist. As noted above, however, in a June 26, , opinion, the U. Supreme Court held that the President's recess appointment power extends to both intersession and intrasession recesses, but that essentially the recess must be 10 days or longer in duration.
This determination appears to be consistent with predominant recess appointment practice in recent decades. Between the beginning of the Reagan presidency in January and the end of December , it appears that the shortest intersession recess during which a President made a recess appointment was 11 days, 21 and the shortest intrasession recess during which a President made a recess appointment was 10 days.
Historically, questions have arisen about the meaning of the constitutional phrase "Vacancies that may happen during the Recess of the Senate. The first interpretation would allow the President to make recess appointments to any position that became vacant prior to the recess and continued to be vacant during the recess, as well as positions that became vacant during the recess.
The second interpretation would allow recess appointments only to positions that became vacant during the recess. Although this question was a source of controversy in the early 19 th century, Attorneys General and most courts, including, in , the U. Supreme Court, 23 have now supported the first, broader interpretation of the phrase. A second question regarding the meaning of "Vacancies" arises in connection with recess appointments to fixed-term positions, such as those often associated with regulatory boards and commissions.
In order to promote continuity of operations, Congress has often 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 recess appointment, if an individual is continuing to serve, under a holdover provision, past the end of his or her term. The courts have varied in their rulings on this matter, and it has not 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. For example, if the language is mandatory the officeholder " shall continue to serve after the expiration of his term" , rather than permissive " may continue to serve" , the position has been seen by the courts as not vacant, and therefore not available for a recess appointment.
A recess appointment expires at the sine die adjournment of the Senate's "next session. Where he has made the appointment during an intrasession recess, however, the duration of the appointment has included the rest of the session in progress plus the full length of the session that followed.
At any point in a year, as a result, by making a recess appointment during an intrasession recess, a President could fill a position not just for the rest of that year, but until near the end of the following year. In practice, this has meant that a recess appointment could last for almost two years. A comparison of two recess appointments during the th Congress illustrates the difference in recess appointment duration that results from the timing of appointments.
During the recess between the first and second sessions, President George W. Bush appointed Charles W. Pickering to a federal court of appeals judgeship. Several weeks later, during the first recess of the second session, President Bush appointed William H.
Pryor to a judgeship on another federal court of appeals. Pickering's appointment expired after less than 11 months, at the end of the second session. In contrast, Pryor's recess appointment would have expired after approximately 22 months, at the end of the first session of the th Congress.
The Constitution does not require that the President submit a nomination of a recess appointee or anyone else to the appointed position, though he may do so. Alternatively, the President sometimes will use a recess appointment to fill a position while a different nominee to the same position is going through the Senate confirmation process.
Under certain conditions, a provision of law may prevent a recess appointee from being paid from the Treasury if the President has not submitted a nomination to the position.
A confirmed appointee and a recess appointee have the same legal authority and receive the same rate of pay. However, two provisions of law may, under certain circumstances, prevent a recess appointee from being paid.
There is no qualification on the President's "Power to fill up all Vacancies" in the constitutional provision. Neither is there a statutory constraint on this power. There are, however, several provisions of law that may prevent a recess appointee from being paid, and this could discourage the President from making a recess appointment under certain circumstances. Under 5 U. Section a , if the position to which the President makes a recess appointment became vacant while the Senate was in session, the recess appointee may not be paid from the Treasury until he or she is confirmed by the Senate.
The salary prohibition does not apply if 1 the vacancy arose within 30 days of the end of the session; 2 a nomination for the office other than the nomination of someone given a recess appointment during the preceding recess was pending when the Senate recessed; or 3 a nomination was rejected within 30 days of the end of the session and another individual was given the recess appointment. A recess appointment falling under any one of these three exceptions must be followed by a nomination to the position not later than 40 days after the beginning of the next session of the Senate.
In addition, although a recess appointee whose nomination to a full term is subsequently rejected by the Senate may continue to serve until the end of the recess appointment, a provision routinely included in an appropriations act may prevent him or her from being paid after the rejection.
Lastly, an individual serving under a recess appointment might not be paid for his or her services if he or she has been nominated to the position twice and the second nomination has been withdrawn or returned. Effective January 20, , and for each fiscal year thereafter, no part of any appropriation contained in this or any other Act may be used for the payment of services to any individual carrying out the responsibilities of any position requiring Senate advice and consent in an acting or temporary capacity after the second submission of a nomination for that individual to that position has been withdrawn or returned to the President.
Although this provision seems designed to prevent payment to persons who are serving in an acting capacity in accordance with the Vacancies Reform Act, a question may arise as to whether this prohibition could extend to recess appointees, given that they are arguably acting in a "temporary capacity. Rejection by the Senate does not end the recess appointment.
However, a provision of the FY Financial Services and General Government Appropriations Act might prevent an appointee from being paid after his or her rejection.
The provision reads, "Hereafter, no part of any appropriation contained in this or any other Act shall be paid to any person for the filling of any position for which he or she has been nominated after the Senate has voted not to approve the nomination of said person.
As a practical matter, nominations are rarely rejected by a vote of the full Senate. Rather, some nominations that are not ultimately confirmed are never reported by, or discharged from, committee; some are reported to, but never taken up by, the full Senate; and some are taken up by the Senate but never subject to a vote on confirmation.
The President may make successive recess appointments of the same or a different individual to a position. Payment from the Treasury to the appointee may be limited, however, under 5 U. Section
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