Order Code RS21308
September 10, 2002
CRS Report for Congress
Received through the CRS Web
Recess Appointments:
Frequently Asked Questions
Henry B. Hogue
Analyst in American National Government
Government and Finance Division
Summary
Under the Constitution (Article 2, Section 2, Clause 2), the President and the
Senate share the power to make appointments to high-level policy-making positions in
federal departments, agencies, boards, and commissions. Generally, the President
nominates individuals to these positions, and the Senate must confirm them before he
can 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, called
a recess appointment, to any such position without Senate approval (Article 2, Section
2, Clause 3). This report supplies brief answers to some frequently asked questions
regarding 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 Vacancies
that may happen during the Recess of the Senate, by granting Commissions which shall
expire at the End of their next Session” (Article 2, Section 2, Clause 3). The records of
debate at the Constitutional Convention and the Federalist Papers provide little evidence
of the framers’ intentions in the recess appointment clause. Opinions by later Attorneys
General, however, suggested that the clause was meant to allow the President to maintain
the continuity of administrative government through the temporary filling of offices
during periods when the Senate was not in session, at which time his nominees could not
be considered or confirmed.1 This interpretation is bolstered by the fact that both Houses
of Congress had relatively short sessions and long recesses during the early years of the
Republic. In fact, until the beginning of the 20th century, Congress was, on average, in
session less than half the year. Throughout the history of the republic, Presidents have
also sometimes used the recess appointment power for political reasons. For example,
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 to
keep 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 Congress

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recess appointments enable the President to temporarily install an appointee who probably
would not be confirmed by the Senate.
How often have recent Presidents made recess appointments?
During his two terms in office, President Ronald W. Reagan made 240 recess
appointments, of which 116 were to full-time positions. President George H. W. Bush
made 77 recess appointments during his term of office; 18 were to full-time positions.
President William J. Clinton made 140 recess appointments during his eight years in
office, 95 to full-time positions. President George W. Bush has also used the recess
appointment power. He made 21 recess appointments between the beginning of his
Administration and the end of the August 2002 recess.
How long does a recess appointment last?
A recess appointment expires at the end of the Senate’s next session or when an
individual (either the recess appointee or someone else) is nominated, confirmed, and
permanently appointed to the position, whichever occurs first. In practice, this means that
a recess appointment may last for less than a year or up to nearly two years. If the
President makes a recess appointment between sessions or between Congresses, that
appointment will expire at the end of the session that begins at the end of the recess. If
he makes the appointment during a recess in the middle of a session, that appointment
will expire at the end of the following, rather than current, session.
The meaning of the phrase “End of their [the Senate’s] next session” in the
Constitution’s recess appointment clause is not precisely defined. A Senate session is
usually 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 have
been included in the adjournment resolution. Nonetheless, sine die adjournment is
generally considered to be the end of the Senate’s session for purposes of the expiration
of a recess appointment.2
For the purposes of recess appointments, what constitutes a vacancy?
The wording of the constitutional provision allowing recess appointments leads to
a question about which positions could actually be filled that way. The question revolves
around 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 allow
the President to make recess appointments to any position that becomes vacant prior to
the recess and continues to be vacant during the recess, as well as positions that become
vacant during the recess. The second meaning would allow recess appointments only to
positions that become vacant during the recess. Although this question was a source of
controversy in the early nineteenth century, Attorneys General and courts have now long
supported the first, broader interpretation of the phrase.
2 See, for example, 41 Op. A.G. 463 (1960), which, in the context of a discussion of the
expiration of recess appointments, refers to sine die adjournment as the end of the Senate’s
session.

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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.3 When the provision includes a specific time limit for the holdover, such
as one year, the position has also been seen as not vacant.4
What 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 length
of the appointment. The recess appointment is temporary (see above) and the confirmed
appointment continues until the end of the term or at the pleasure of the President,
depending on the statutory provisions creating the position.
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 being
paid under certain circumstances. (See below, “Are there any legal constraints on the
President’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 recess
before the President may make a recess appointment. Over the last century, as shorter
recesses have become more commonplace, Attorneys General and Offices of Legal
Counsel have offered differing views on this issue. Most recently, in 1993, a Department
of Justice brief implied that the President may make a recess appointment during a recess
of more than three days.5 Appointments made during short recesses (less than 30 days),
however, have often aroused controversy, and they may involve a political cost for the
President. Controversy has been particularly acute in instances where Senators perceive
that the President is using the recess appointment process to circumvent the confirmation
process for a nominee who is opposed in the Senate. Although President Theodore
3 Compare Staebler v. Carter, 464 F. Supp. 585 (1979), and Wilkinson v. L.S.C., 865 F. Supp. 891
(1994).
4 See Mackie v. Clinton, 827 F. Supp. 56 (1993).
5 Mackie v. Clinton, Civil Action 93-0032-LFO, July 2, 1993.

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Roosevelt once made recess appointments during an intersession recess of less than one
day, the shortest length of a recess during which appointments have been made during 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 the
constitutional 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 recess
appointment fell 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: (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 recess
appointment 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 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.6 For this reason, when a
recess appointment is made, the President generally submits a new nomination for the
nominee even when an old nomination is pending. In addition, although recess
appointees whose nominations to a full term are subsequently rejected by the Senate may
continue to serve until the end of their recess appointment, a provision of the Treasury and
General Government Appropriations 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 by the 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) and
intrasession (during a recess within a session) recess appointments. Intrasession recess
appointments were rare, however, prior to the 1940s.7 Although they are now a common
practice, the authority of the President to make intrasession recess appointments has
periodically been questioned in the Senate, particularly when an appointment involves a
controversial individual or a short recess.
6 Congress placed limits on payments to recess appointees as far back as 1863. The current
provisions 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, see
CRS Report 87-832 A, Recess Appointments: Legal Overview, by Richard C. Ehlke (archived;
contact author for more information).
7 Prior to 1943, only Presidents Andrew Johnson, Warren G. Harding, and Calvin Coolidge had
made such appointments. Johnson appointed 14 individuals during a single intrasession recess,
and Harding and Coolidge each appointed one person in this way.

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Does a recess appointee have to be nominated to the position as well?
The President is not required to nominate the recess appointee to the appointed
position. The President will sometimes use a recess appointment to fill a position while
a different nominee to the same position is going through the confirmation process in the
Senate. Under certain conditions, however, a provision of law may prevent a recess
appointee from being paid from the Treasury if he or she has not been nominated to the
position. (See above, “Are there any legal constraints on the President’s recess
appointment 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 the
appointee may be prevented, however, by a recurring provision of the Treasury and
General Government Appropriations Act. The provision reads, “No part of any
appropriation ... 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” (P.L. 107-67, sec. 609), and it has been part of this appropriations measure for at
least 50 years.
Can the President make successive recess appointments to the same
position?

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 certain conditions. (See above, “Are there any legal constraints on the
President’s recess appointment power?”)
Can a recess appointment be used to fill a vacancy on the federal bench?
Yes, but in recent years recess appointments of federal judges have been unusual and
controversial. Over the past 20 years, there has been only one recess appointment to fill
an Article III judgeship. President William J. Clinton named Roger L. Gregory to the
Fourth Circuit on December 27, 2000 as a recess appointment, a step that was met by
some opposition in the Senate. Ultimately, Gregory was re-nominated by President
George W. Bush and confirmed by the Senate.

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Related CRS Products
CRS Report RL31346, Presidential Appointments to Full-Time Positions in Executive
Departments During the 107th Congress, 2001-2002, by Henry B. Hogue.
CRS Report RL31435, Presidential Appointments to Full-Time Positions in Independent
and Other Agencies During the 107th Congress, by Henry B. Hogue.
CRS Report RL30910, Presidential Appointments to Full-Time Positions on Regulatory
and Other Collegial Boards and Commissions During the 107th Congress, by Henry
B. Hogue.
CRS Report RL30821, Recess Appointments Made by President Clinton, by Rogelio
Garcia.
CRS Report RL31112, Recess Appointments of Federal Judges, by Louis Fisher.