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 CRS-2 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. CRS-3 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. CRS-4 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. CRS-5 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. CRS-6 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.