Order Code RS21308
Updated January 16, 2007
Recess Appointments:
Frequently Asked Questions
Henry B. Hogue
Analyst in American National Government
Government and Finance Division
Summary
Under the Constitution (Article II, 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 II, 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.

---

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?
President William J. Clinton made 139 recess appointments during his eight years
in office, 95 to full-time positions. During his first six years in office, President George
W. Bush made 167 recess appointments, of which 101 were to full-time positions.2
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 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 following session. If he makes the appointment during a recess in the middle
of a session, that appointment also will expire at the end of the following session. In this
case, the duration of the appointment will include the balance of the session in progress
plus the full length of the session that follows.
A comparison of two recess appointments by President George W. Bush illustrates
the difference in recess appointment duration that results from the timing of an
appointment. On January 16, 2004, during the recess between the first and second
sessions of the 108th Congress, President Bush recess-appointed Charles W. Pickering to
the U.S. Court of Appeals for the Fifth Circuit. Pickering’s appointment expired on
December 8, 2004, at the end of the second session of the 108th Congress. Several weeks
after the Pickering appointment, on February 20, 2004, President Bush recess-appointed
William H. Pryor to the U.S. Court of Appeals for the Eleventh Circuit. This recess
appointment took place during a 10-day adjournment of the Senate within the second
session of the 108th Congress. Consequently, Pryor’s recess appointment would have
expired at the end of the first session of the 109th Congress, on December 21, 2005.3
Although the Pickering and Pryor recess appointments were only several weeks apart,
Pryor could have served a year longer because his appointment was made during an
intrasession recess.
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
2 For more, see CRS Report RL33310, Recess Appointments Made by President George W. Bush,
January 20, 2001-January 4, 2007, by Henry B. Hogue and Maureen Bearden.
3 Pryor was subsequently confirmed by the Senate and appointed to the position permanently.

---

CRS-3
generally considered to be the end of the Senate’s session for purposes of the expiration
of a recess appointment.4
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.
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.5 When the provision includes a specific time limit for the holdover, such
as one year, the position has also been seen as not vacant.6
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.
4 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.
5 Compare Staebler v. Carter, 464 F. Supp. 585 (1979), and Wilkinson v. L.S.C., 865 F. Supp. 891
(1994).
6 See Mackie v. Clinton, 827 F. Supp. 56 (1993).

---

CRS-4
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 the Office 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.7 Appointments made during short recesses (less than 30 days),
however, have sometimes 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.
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 provisions of 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.8 For this reason, when a
recess appointment is made, the President generally submits a new nomination to the
position 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 routinely included in an
appropriations act may prevent them from being paid after their rejection. (See below,
7 Mackie v. Clinton, Civil Action 93-0032-LFO, July 2, 1993.
8 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 RL33009, Recess Appointments: A Legal Overview, by T.J. Halstead.

---

CRS-5
“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 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.9 Intrasession recess
appointments are usually of longer duration than intersession recess appointments. (See
above, “How long does a recess appointment last?”)
Must a Recess Appointee 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 Transportation,
Treasury, Housing and Urban Development, the Judiciary, and Independent Agencies
Appropriations Act. The provision reads, “No part of any appropriation for the current
fiscal year 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.”10 This provision has been part of this annual
funding activity for at least 50 years. As a practical matter, nominations are rarely
rejected by a vote of the full Senate.
9 Regarding Senate controversy, see Sen. George Mitchell, “The Senate’s Constitutional
Authority to Advise and Consent to the Appointment of Federal Officers,” Congressional
Record, vol. 139, July 1, 1993, p. 15266; and Senate Legal Council, “Memorandum of United
States Senate as Amicus Curiae in Support of Plantiffs’ Motion, and in Opposition to
Defendants’ Motions, for Summary Judgment on Count Two,” U.S. District Court for the District
of Columbia, Mackie v. Clinton, C.A. No. 93-0032-LFO, Congressional Record, vol. 139, July
1, 1993, pp. 15267-15274. For academic literature, see, for example, Michael A. Carrier, “When
Is the Senate in Recess for Purposes of the Recess Appointments Clause?” Michigan Law
Review, vol. 92, June 1994.
10 P.L. 109-115, Div. A, Sec. 809; 119 Stat. 2497.

---

CRS-6
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 5 U.S.C. 5503. (See also above, “Are there any legal constraints on the
President’s recess appointment power?”) Subsection 5503(a) provides, in part, that:
Payment for services may not be made from the Treasury of the United States to an
individual appointed during a recess of the Senate to fill a vacancy in an existing
office, if the vacancy existed while the Senate was in session and was by law required
to be filled by and with the advice and consent of the Senate, until the appointee has
been confirmed by the Senate.
The provision allows three exemptions to this pay prohibition, two of which would
not apply in this situation. Under the remaining exemption, “if, at the end of the session,
a nomination for the office, other than the nomination of an individual appointed during
the preceding recess of the Senate, was pending before the Senate for its advice and
consent,” the prohibition would not apply.11 The clause “other than the nomination of an
individual appointed during the preceding recess of the Senate” probably would prevent
payment in the case of most successive recess appointments. This interpretation has been
supported by the Office of Legal Counsel (OLC), Department of Justice, which stated in
1991, “Although its language is far from clear, section 5503(a) has been interpreted as
prohibiting the payment of compensation to successive recess appointees.”12
Can a Recess Appointment Be Used to Fill a Vacancy
on the Federal Bench?
Presidents have long made recess appointments to the federal judiciary. In recent
years, however, recess appointments of federal judges have been unusual and
controversial. Over the past 20 years, there have been only three recess appointments to
fill Article III judgeships. 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. On January 16, 2004, President George
W. Bush recess-appointed Charles W. Pickering to the U.S. Court of Appeals for the Fifth
Circuit. Pickering’s appointment expired on December 8, 2004, at the end of the second
session of the 108th Congress, and he retired.13 On February 20, 2004, President Bush
named William H. Pryor to the Eleventh Circuit Court of Appeals. Pryor was
subsequently confirmed by the Senate.14

11 5 U.S.C. 5503(a)(2).
12 15 Op. O.L.C. 93 (1991). See also 6 Op. O.L.C. 585 (1982); 41 Op. A.G. 463 (1960).
13 Adam Liptak, “Judge Appointed by Bush After Impasse in Senate Retires,” The New York
Times, Dec. 10, 2004, p. A20.
14 For more, see CRS Report RL31112, Recess Appointments of Federal Judges, by Louis Fisher;
and CRS Report RS22039, Federal Recess Judges, by Louis Fisher.

---