Recess Appointments: A Legal Overview
Vivian S. Chu
Legislative Attorney
May 12, 2011
Congressional Research Service
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www.crs.gov
RL33009
CRS Report for Congress
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repared for Members and Committees of Congress

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Recess Appointments: A Legal Overview

Summary
The U.S. Constitution explicitly provides the President with two methods of appointing officers
of the United States. First, the Appointments Clause provides the President with the authority to
make appointments with the advice and consent of the Senate. Specifically, Art. II, § 2, cl. 2 states
that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Appointments are not herein otherwise provided for,
and which shall be established by law.” Second, the Recess Appointments Clause authorizes the
President to make temporary appointments unilaterally during periods when the Senate is not in
session. Art. II, § 2, cl. 3 provides: “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 their next Session.”
While the Recess Appointments Clause enables the continuity of government operations,
Presidents, on occasion, have exercised authority under the Clause for tactical or political
purposes, appointing officials who might otherwise have difficulty securing Senate confirmation.
Yet, the Recess Appointments Clause is not without its ambiguities, and the President’s use of this
power in light of these ambiguities has given rise to significant political and legal controversy
since the beginning of the Republic.
This report provides an overview of the Recess Appointments Clause, exploring its historical
application and legal interpretation by the executive branch, the courts, and the Comptroller
General. Furthermore, congressional legislation designed to prevent the President’s overuse or
misuse of the Clause is also explored.

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Contents
Background ................................................................................................................................ 1
Textual Issues and Historical Interpretation ................................................................................. 3
“Vacancies That May Happen”.............................................................................................. 3
“The Recess of the Senate” ................................................................................................... 7
Authority and Tenure of Recess Appointees............................................................................... 10
What Is the Tenure of a Recess Appointee Who Is Also the Nominee? ................................. 11
When Is There a Vacancy If There Is a Statutory Holdover Provision?................................. 12
Statutory Pay Restrictions on Recess Appointees ....................................................................... 14
Early Statutory Pay Restriction............................................................................................ 14
Modern Statutory Pay Restriction........................................................................................ 15
Conclusion................................................................................................................................ 20

Contacts
Author Contact Information ...................................................................................................... 20
Acknowledgments .................................................................................................................... 20

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Background
The Appointments Clause of the Constitution establishes that the President “shall nominate, and
by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States,
whose Appointments are not herein otherwise provided for and which shall be established by
law.”1 Pursuant to the Recess Appointments Clause, the President, further, has the “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.”2 The Recess Appointments Clause was
adopted by the Constitutional Convention without dissent or debate regarding the intent and
scope of its terms.
In light of express provisions and historical pronouncements during ratification of the
Constitution, it is generally accepted that the Recess Appointments Clause was designed to enable
the President to ensure the unfettered operation of the government during periods when the
Senate was not in session and therefore unable to perform its advice and consent function.3
Alexander Hamilton referred to the recess appointment power as “nothing more than a
supplement ... for the purpose of establishing an auxiliary method of appointment, in cases to
which the general method was inadequate.”4 During the ratification debates in Pennsylvania,
Thomas McKean, a prominent figure of the American Revolution and member of the
Pennsylvania convention, noted with approval the sharing of the appointive power with the
Senate and stated that the Senate need not “be under any necessity of sitting constantly, as has
been alleged, for there is an express provision made to enable the President to fill up all vacancies
that may happen during their recess; the commissions, to expire at the end of the next session.”5
Likewise, Archibald Maclaine, a member of the Hillsborough convention during the ratification
debates in North Carolina and influential supporter for ratification of the Constitution, stated:
Congress are not to be sitting at all times; they will only sit from time to time, as the public
business may render it necessary. Therefore the executive ought to make temporary
appointments.... This power can be vested nowhere but in the executive, because he is
perpetually acting for the public; for, though the Senate is to advise him in the appointment
of officers, &c., yet, during the recess, the President must do this business, or else it will be
neglected; and such neglect may occasion public inconveniences.6
The idea of the recess appointment power as a practical accommodation is supported by the fact
that until the Civil War, Congress consistently met for relatively short sessions followed by long
recesses of six to nine months.7 Congress largely adhered to this pattern during and after the Civil

1 U.S. Const., Art. II, § 2, cl. 2. The appointment of other, so-called “inferior officers,” may be vested by Congress in
the President alone, courts, or the heads of departments. Id.
2 U.S. Const., Art. II, § 2, cl. 3.
3 CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by Henry B. Hogue.
4 The Federalist, No. 67, at 409-10 (Alexander Hamilton) (Clinton Rossiter ed. 1961).
5 2 The Documentary History of the Ratification of the Constitution 537 (Merrill Jensen, ed. 1976).
6 Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev.
377, 380-81 (2005) (quoting 4 The Founders’ Constitution 37, 102-03 (P. Kurland ed., 1787)).
7 Id. See also Michael A. Carrier, When is the Senate in Recess for Purposes of the Recess Appointments Clause?, 92
Mich. L. Rev. 2204, 2212 (1994).
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War, scheduling an intrasession recess8 of approximately two weeks from the end of December
until the beginning of January.9 The recess practices of Congress changed in the mid-20th century,
and are now characterized by more frequent recesses of relatively short duration within sessions
of a Congress. The adjournments of Congress between sessions are also shorter.10
In addition to fostering administrative continuity, Presidents also have exercised authority under
the Recess Appointments Clause for tactical or political purposes throughout the history of the
Republic, giving rise to significant political and legal controversy. For instance, President
Madison’s recess appointments of Albert Gallatin, John Quincy Adams and James A. Bayard as
envoys to negotiate a peace treaty with Great Britain in 1813 prompted heated debate in the
Senate.11 Presidents Jackson, Taylor, and Lincoln also made hundreds of recess appointments
during their terms.12 Additionally, recess appointments to the judiciary were common during the
early years of the Republic, with the first five Presidents making 31 such appointments, including
five to the Supreme Court.13 Among these, President Washington’s recess appointment of John
Rutledge as Chief Justice generated significant controversy, ultimately factoring in his rejection
by the Senate;14 though interestingly, “no recorded challenge was made to the constitutionality of
his recess appointment.”15 In total, 12 Justices have received recess appointments to the Supreme
Court, and many of these Justices participated in Court business prior to Senate action on their
nominations.16 The mid-19th century phenomena of long congressional adjournments, frequent
resort to recess appointments, and the rise of the spoils system17 in the federal government
spurred Congress to impose statutory restrictions on the President’s appointment and removal
power, including restrictions on paying certain classes of recess appointees.18 Additionally, the
Tenure of Office Act of 1867, which figured prominently in the impeachment effort against
President Johnson, included several provisions purporting to limit the recess appointment power
of the President.19

8 An intrasession recess refers to a recess of the Senate during a session of the Senate.
9 Carrier, supra note 7, at 2212. Before the passage of the 20th Amendment in 1934, “the term of each Congress began
on March 4th of each odd numbered year. ... The Congress ... convened regularly on the first Monday in December. ...
So, prior to 1934, a new Congress typically would not convene for regular business until 13 months after being
elected.” Congressional Directory at 526 (2009).
10 See Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1500-
01 (2005).
11 See 20 Op. A.G. 284 (1996).
12 See Fish, Carl R. Removal of Officials by the Presidents of the United States, Annual Report of the American
Historical Association for the Year 1899. Vol. 1. Washington, D.C., Government Printing Office (1900).
13 Thomas A Curtis, Recess Appointments to Article III Courts: The Use of Historical Practice in Constitutional
Interpretation, 84 Colum. L. Rev. 1758, 1755 (1984).
14 Id. at 1775-76.
15 Id. at 1776.
16 Henry B. Hogue, The Law: Recess Appointments to Article III Courts, Presidential Studies Quarterly 34, No. 3 at 661
(2004).
17 A spoils system refers to a system of patronage, in which the winning political party will give government jobs to its
supporters who worked toward the victory as opposed to awarding offices on the basis of some measure of merit,
independent from any political activity.
18 See “Statutory Pay Restrictions on Recess Appointees,” infra note 99 and accompanying text.
19 See “Statutory Pay Restrictions on Recess Appointees,” infra note 103 and accompanying text.
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With the inherent ambiguities of the Clause, and the evolution of modern congressional
practices,20 the confusion over recess appointments is further complicated by additional factors,
such as the application of statutory restrictions to recess appointments. Accordingly, this report
first examines the textual and historical interpretation of the ambiguous phrases of the Clause. It
then discusses the authority and tenure of recess appointees, and lastly, congressional action to
curb potentially politically motivated utilization of the recess appointment power.
Textual Issues and Historical Interpretation

Recess Appointments Clause (Art. II, § 2, cl. 3.)
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting
Commissions which shal expire at the End of their next Session (emphasis added).

Although practices with respect to recess appointments and debates between Presidents and the
Congress over the propriety of particular recess appointments occurred in the formative years of
the Republic,21 formal consideration of the issue has occurred primarily in the context of
Attorneys General opinions, with periodic attention from the courts and Congress. Aspects of the
recess appointment power were considered as early as 1792, and there were at least 19 formal
Attorneys General opinions in the 19th century on recess appointments, the earliest being in 1823.
Interpretation questions have primarily revolved around the phrases “Vacancies that may happen”
and “Recess of the Senate,” and accordingly are discussed in this section. While many of the
interpretational questions surrounding the Clause are now deemed, at least by the executive
branch, to be settled, there have been numerous contrary opinions and expressions of doubt in the
course of arriving at these generally accepted interpretations.
“Vacancies That May Happen”
An initial question that arose was what constitutes a “Vacanc[y] that may happen” during the
recess of the Senate? On the one hand, if the term “happen” is interpreted as referring only to
vacancies that occur during a recess, or after a recess of the Senate commences, it necessarily
follows that the President would lack authority to make a recess appointment to a vacancy that
existed prior to the recess. In 1792, the first Attorney General, Edmund Randolph, responded to
an inquiry as to whether a recess appointment could be made to the position of Chief Coiner of
the Mint, a newly created position for which no nomination had been made before the Senate
recessed.22 Randolph concluded that the vacancy occurred on the day the office had been created,
and thus could not be filled with a recess appointment because the vacancy existed prior to the
Senate’s recess.23 He based his opinion on the text of the Clause and on the “spirit of the

20 Rappaport, supra note 10.
21 See Curtis, supra note 13, at 1758.
22 Edmund Randolph, Opinion on Recess Appointments (July 7, 1792), in 24 The Papers of Thomas Jefferson, at 165-
67 (John Catanzariti et al. ed., 1990) (Attorney General Randolph was responding to an inquiry from Thomas Jefferson,
then serving as Secretary of Foreign Affairs). See also, Hartnett, supra note 6, at 384-86; Rappaport, supra note 10, at
1518-19.
23 Randolph, supra note 22, at 166; Rappaport, supra note 10, at 1519.
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Constitution,” declaring that the Recess Appointments Clause must be “interpreted strictly”
because it serves as “an exception to the general participation of the Senate.”24 In 1799,
Alexander Hamilton, then serving as Major General of the Army, responded to a similar inquiry
from the Secretary of War, stating “[i]t is clear, that independent of the authority of a special law,
the President cannot fill a vacancy [pursuant to the Recess Appointments Clause] which happens
during a session of the Senate.”25
On the other hand, if “happen” is construed more broadly to encompass vacancies that exist
during a recess, the President would be empowered to make a recess appointment to any vacant
position, irrespective of whether the position became vacant prior to or during “the Recess of the
Senate.” In 1823, Attorney General William Wirt, without mentioning the Randolph opinion,
concluded that the phrase encompassed all vacancies that happen to exist during “the Recess.”26
In other words, recess appointments could be made to vacancies that came into being before the
recess of the Senate commenced. While Attorney General Wirt acknowledged that the “opposite
construction [i.e., Randolph’s narrower interpretation] is, perhaps, more strictly consonant with
the mere letter” of the Clause, he opted for, in his view, “the only construction of the Constitution
which is compatible with its spirit, reason, and purpose.”27 Wirt further stated: “The substantial
purpose of the Constitution was to keep these offices filled; and powers adequate to this purpose
were intended to be conveyed. But if the President shall not have the power to fill a vacancy thus
circumstanced, the powers are inadequate to the purpose, and the substance of the Constitution
will be sacrificed to a dubious construction of its letter.”28
The Senate expressed opposition to the interpretation offered by Attorney General Wirt,29 and
notable scholars such as Joseph Story, in his Commentaries on the Constitution, also seemed to
adopt a construction different from Wirt’s, at least with respect to newly created offices to which
nominations had not been named (akin to the Randolph position).30 Differing interpretations, such
as those of Attorneys General Randolph and Wirt, are reflective of the early controversies
between the Senate and the President on the meaning of this phrase.
Yet, subsequent opinions of the Attorney General in 1832 and 1841 endorsed Wirt’s
interpretation, though both opinions involved second recess appointments after initial recess
commissions had expired, and both opined that, under such circumstances, the vacancy occurred
after adjournment of the Senate when the first recess commission ended.31 Furthermore, echoing

24 Randolph, supra note 22, at 166; Rappaport, supra note 10, at 1519.
25 Rappaport, supra note 10, at 1519. The “special law” to which Hamilton refers is a law that would vest the
appointment of an “inferior Officer” in the President alone. Under such a law, Congress could allow the President alone
to make “a permanent appointment of an inferior officer, or a temporary appointment extending till the end of the next
session, irrespective of when the vacancy arose.” Id. at n.92.
26 1 Op. A.G. 631, 633-34 (1823).
27 Id.
28 Id. at 632.
29 See George H. Haynes, The Senate of the United States, Vol. 2 at 772-73 (Russell and Russell ed., 1960).
30 3 Story, Commentaries on the Constitution of the United States 411 (Da Capo ed., 1970).
31 2 Op. A.G. 525, 526 (1832) (“The appointment ... during the last recess ‘filled up’ the vacancy which had happened,
and the office remained full; and there was no vacancy, from the time of his appointment and acceptance until the close
of the late session. The nomination made not being confirmed by the Senate, the commission granted by the President
expired at the end of the session; and the moment after it closed, the office again became vacant. This was a new
vacancy.”); 3 Op. A.G. 673, 676 (1841) (“My opinion is, that the same overruling necessity which applied to the
original vacancy applies to the second one, created by an omission of the Senate to act on a nomination.”).
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the sentiments of Wirt, Attorney General Roger B. Taney, in the 1832 opinion stated that the
Constitution “was formed for practical purposes, and a construction that defeats the very object of
the grant of power cannot be the true one. It was the intention of the constitution that the offices
created by law, and necessary to carry on the operations of the government, should always be full,
or at all events, that the vacancy should not be a protracted one.”32
He went on to stress, however, that “vacancies are not designedly to be kept open by the President
until the recess, for the purpose of avoiding the control of the Senate.”33
Notwithstanding the opinions that agreed with the 1832 Wirt opinion, in a brief opinion from
1845, Attorney General John Y. Mason concluded that “[i]f vacancies are known to exist during
the session of the Senate, and nominations are not then made, they cannot be filled by executive
appointments in the recess of the Senate.”34 Though he did not make any reference to the
preceding opinions to the contrary, the Attorney General noted, in a subsequent opinion, these
prior opinions and stated that “[f]rom the commencement of the government, it is believed that a
power has been exercised which would appear to be inconsistent with a construction of the
section of the constitution which would confine the meaning of the word ‘happen’ to the time at
which the office is in fact vacated.”35 Similarly, Attorney General William M. Evarts, in 1868,
discussed this later opinion of Mason’s, stating that it “expresses his general concurrence in the
construction of the constitutional provision under consideration adopted by his predecessors.”36
Also, during this period, several Senators raised questions as to the proper interpretation of the
word “happen” in the Recess Appointments Clause. While one Senate Committee on the
Judiciary Report from 1863 expressed that vacancies that arose while the Senate was in session
could not be filled by recess appointment,37 other Members noted that contrary opinions existed
on the subject. Further, an appropriations rider to prevent recess appointees from being paid was
enacted, discussed below (“Early Statutory Pay Restriction”).
Despite this brief departure from the broader interpretation of Attorney General Wirt, formal
Attorneys General opinions returned to the Wirt interpretation beginning in 1855. These opinions
further concluded that “Vacancies may happen” even with respect to newly created offices that
had never been filled.38 Attorney General Bates, in an 1862 opinion, stated that the question of
when a vacancy may happen “is settled ... as far, at least, as a constitutional question can be
settled, by the continued practice of your predecessors, and the reiterated opinions of mine, and
sanctioned, as far as I know or believe, by the unbroken acquiescence of the Senate.”39 Attorney
General Stanberry also justified his interpretation by noting that the term vacancy “implies
duration, a condition or state of things which may exist for a period of time. Can it be said that the
word happen, when applied to such a subject, is only properly applicable to its beginning?”40
Stanberry further stated that executive power must always have capacity for action and that to
adopt a narrow construction of the Recess Appointments Clause would interfere with that

32 2 Op. A.G. at 526-27.
33 Id. at 528 (emphasis in original).
34 4 Op. A.G. 361, 363 (1845).
35 4 Op. A.G. 523, 525 (1846).
36 12 Op. A.G. 455 (1868).
37 S. Rept. 80, 37th Cong., 3d Sess. (1863).
38 7 Op. A.G. 186 (1855); 18 Op. A.G. 28 (1884); 19 Op. A.G. 261 (1889).
39 10 Op. A.G. 356 (1862).
40 12 op. A.G. 32, 34 (1866) (emphasis in original).
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ability.41 Attorney General Evarts, in an 1868 opinion, declared the matter so settled that it is
“hardly useful to express an opinion as upon an original question.”42 Evarts nonetheless
considered the merits of the opposing interpretation, in light of the “renewed interest in the whole
subject of executive authority in appointments to office, excited by recent legislation of
Congress,” ultimately concluding that he could not but concur with “the views of [his] learned
predecessors.”43 Subsequent Attorneys General opinions have consistently interpreted “happen”
to mean “happen to exist” and have acknowledged recess appointments to offices that became
vacant while the Senate was in session.44
The broader interpretation was first adopted by a federal court in the 1880 decision In re
Farrow.45 In Farrow, Circuit Justice Woods adopted the reasoning of the aforementioned
Attorneys General opinions, stating that “[t]hese opinions exhaust all that can be said on the
subject.”46 In reaching his conclusion, Circuit Justice Woods rejected the contrary opinion of a
district court, stating that its holding “ought not to be held to outweigh the authority of the great
number which are cited in support of the opposite view, and of the practice of the executive
department for nearly 60 years, the acquiescence of the [S]enate therein, and the recognition of
the power claimed by both [H]ouses of [C]ongress.”47 The holding in Farrow was also
subsequently echoed in In re Yancey.48 In the modern era, courts have continued to adhere to this
interpretation. In United States v. Allocco, for instance, the U.S. Court of Appeals for the Second
Circuit stated that a contrary interpretation “would create executive paralysis and do violence to
the orderly functioning of our complex government.”49 Likewise, in United States v. Woodley, the
U.S. Court of Appeals for the Ninth Circuit stated that a contrary interpretation would “lead to the
absurd result that all offices vacant on the day the Senate recesses would have to remain vacant at
least until the Senate reconvenes.”50 Most recently, in Evans v. Stephens, the U.S. Court of
Appeals for the Eleventh Circuit (Eleventh Circuit) stated that “interpreting the phrase to prohibit
the President from filling a vacancy that comes into being on the last day of a Session but to
empower the President to fill a vacancy that arises immediately thereafter (on the first day of a
recess) contradicts what we understand to be the purpose of the Recess Appointments Clause: to
keep important offices filled and the government functioning.”51

41 Id. at 38.
42 12 Op. A.G. 449, 452 (1868).
43 Id.
44 See 14 Op. A.G. 562 (1875); 15 Op. A.G. 207 (1877); 16 Op. A.G. 522 (1880); 16 Op. A.G. 538 (1880); 17 Op. A.G.
521 (1883); 18 Op. A.G. 29 (1884); 19 Op. A.G. 261 (1889); 26 Op. A.G. 234 (1907); 30 Op. A.G. 314 (1914); 33 Op.
A.G. 20 (1921); 41 Op. A.G. 463 (1960); 6 U.S. Op. Off. Legal Counsel 585 (1982).
45 3 Fed. 112, 116 (C.C.N.D. Ga. 1880) (stating that the President has the power to make appointments
“notwithstanding the fact that the vacancy filled by his appointment first happened when the [S]enate was in session.”).
46 Id. at 115.
47 Id. at 115 (rejecting the holding in Case of District Attorney of United States, 7 Fed. Cas. 731 (No. 3924, E.D. Pa.
1868)); see also, contrary opinion in Schenck v. Peay, 21 Fed. Cas. 672 (No. 12451 E.D. Ark. 1869).
48 28 Fed. 445, 450 (C.C.W.D. Tenn. 1886) (holding the recess appointment of a marshal by the President to be lawful,
and that there was no need to turn to other legal mechanisms to qualify the appointment).
49 305 F.3d 704, 712 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963).
50 751 F.2d 1008, 1012 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986).
51 387 F.3d 1220, 1226-27 (11th Cir. 2004), cert. denied, 125 S.Ct. 1640 (2005). The decisions in Allocco, Woodley, and
Evans are additionally significant, in that all three held that the President’s power under the Recess Appointments
Clause extends to filling judicial vacancies on Article III courts. For an analysis of the interplay of the Recess
Appointments Clause and Article III of the Constitution, see CRS Report RL32971, Judicial Recess Appointments: A
Legal Overview, by T. J. Halstead.
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With respect to this particular phrase, Attorneys General and the courts have rejected a narrow
interpretation and have adopted the broader construction, believing it to be both consistent with
the spirit of the Clause and necessary for the continuous and efficient operation of the
government. It can also be argued that the Congress has acquiesced in this interpretation,
primarily through the passage of statutes that recognize the possibility of such appointments,
discussed below.52 Furthermore, while congressional statements disputing the prevailing
interpretation have been made during periods of controversy surrounding recess appointments,
such statements have been made by “individual members of the senate ... but not the senate
itself.”53
“The Recess of the Senate”
Under the prevailing interpretation, recess appointments seem to be permitted when a vacancy
occurs before or during the recess of the Senate, but another question that later emerged was the
meaning of the phrase “the Recess of the Senate.” The first formal opinion on the subject was
issued by Attorney General Knox in 1901, and concluded that the phrase applied only to
adjournments between sessions of Congress, commonly referred to as “intersession” recesses.54
Knox placed significant weight on the use of the definite article “the” in the Recess Appointments
Clause, emphasizing that “[i]t will be observed that the phrase is ‘the recess.’”55 The opinion
further concluded that if recess appointments were allowed during periods other than an
intersession recess, nothing would prevent an appointment from being made “during any
adjournment, as from Thursday or Friday until the following Monday.”56 The opinion specifically
rejected a Court of Claims decision that upheld paying the salary of an Army paymaster
appointed during a temporary (intrasession) recess in 1867, which had extended from July 20 to
November 21, 1867.57
Twenty years later, this position was abandoned. An opinion issued by Attorney General
Daugherty in 1921 declared that an appointment made during a 29-day intrasession recess was
constitutional. The Daugherty opinion focused on the practical aspects of the recess appointment
dynamic, stating that “[i]f the President’s power of appointment is to be defeated because the
Senate takes an adjournment to a specified date, the painful and inevitable result will be
measurably to prevent the exercise of governmental functions.”58 In support of this interpretation,
the Attorney General cited the 1884 Court of Claims decision that was repudiated in the Knox
opinion, as well as a report from 1905 of the Senate Committee on the Judiciary that had been
asked to examine the meaning of the term “recess.” The Senate report had concluded:
It was evidently intended by the framers of the Constitution that it [Article II, sec. 2] should
mean something real, not something imaginary; something actual, not something fictitious.
They used the word as the mass of mankind then understood it and now understand it. It
means, in our judgment, in this connection the period of time when the Senate is not sitting

52 See “Statutory Pay Restrictions on Recess Appointees,” infra.
53 Farrow, 3 Fed. at 115.
54 23 Op. A.G. 599 (1901).
55 Id. at 600 (emphasis in original).
56 Id. at 603.
57 See Gould v. United States, 19 Ct. Cl. 593 (1884).
58 33 Op. A.G. 20, 23 (1921).
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in regular or extraordinary session as a branch of the Congress or in extraordinary session
for the discharge of executive functions; when its members owe no duty of attendance; when
its chamber is empty; when, because of its absence, it can not receive communications from
the President or participate as a body in making appointments. ... This is essentially a proviso
to the provision relative to appointments by and with the advice and consent of the Senate. It
was carefully devised so as to accomplish the purpose in view, without in the slightest degree
changing the policy of the Constitution, that such appointments are only to be made with the
participation of the Senate. Its sole purpose was to render it certain that at all times there
should be, whether the Senate was in session or not, an officer for every office, entitled to
discharge the duties thereof.59
Even though he emphasized this functional approach, Daugherty limited the scope of his opinion
by rejecting the notion that a broad interpretation would authorize intrasession appointments
during brief adjournments, declaring that “an adjournment for 5 or even 10 days [cannot] be said
to constitute the recess intended by the Constitution.”60 The opinion concluded by emphasizing
that while “[e]very presumption is to be indulged in favor of the validity of whatever action [the
President] may take ..., there is a point, necessarily hard of definition, where palpable abuse of
discretion might subject his appointment to review.”61
While it did not specifically address intrasession recess appointments, the 1905 Senate
Committee on the Judiciary Report, quoted above and relied on by Attorney General Daugherty
in his 1921 opinion, was prompted by what undoubtedly was the briefest recess ever relied on by
a President in order to make recess appointments. At that moment the 58th Congress, first session
ended at noon, December 7, 1903, and the second session immediately began thereafter, President
Theodore Roosevelt announced the recess appointment of over 160 officers—mostly military.
Two of these appointees had previously held recess appointments and were controversial
officeholders. Although President Roosevelt, like Attorney General Knox, disagreed with the
notion of intrasession recess appointments, he construed the period between these sessions as a
“constructive recess.”62 The 1905 Senate Committee on the Judiciary Report was issued 14
months afterward and emphatically rejected Roosevelt’s actions. Notably, however, the Report,
while expressing disapprobation of the President’s exercise of the recess appointment power in
such a manner, could be read as validating the execution of intrasession recess appointments
generally. Alternatively, it could be argued that this historically anomalous event lends no weight
to the overall consideration of the matter.
The question of what constituted a recess for purposes of the Clause arose substantially later than
the vacancy issue due to the fact that Congress took few intrasession recesses, other than brief
holiday recesses, until the advent of the modern era.63 The question of what constitutes a “recess”
has become more critical as the opportunity for the execution of such appointments has increased.
Indeed, as illustrated above, there has been a steady and significant increase in intrasession recess

59 S.Rept. 4389 at 2 (1905); 39 Cong. Rec. 3823-24 (1905).
60 33 Op. A.G. at 25.
61 Id. at 25.
62 See Hogue, supra note 16, at 671. Roosevelt’s actions could be viewed as a practical manifestation of the potential
infirmities of the Knox interpretation; that is, if a formalistic interpretation of the Clause rests upon a concern that
allowing intrasession appointments will foster systematic avoidance of the Senate’s advice and consent function, the
fact that a President is able to make such appointments during an instantaneous “constructive recess” of the Senate
would appear to belie such a distinction. See Hartnett, supra note 6, at 416.
63 See Carrier, supra note 7, at 2212-13.
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appointments attendant to the shift in the recess practices of the Congress. Subsequent Attorneys
General and Department of Justice Office of Legal Counsel opinions have continued to support
the constitutionality of intrasession recess appointments, with more recent pronouncements on the
issue strongly implying that the Clause encompasses all recesses in excess of three days.64
In addition, it would appear that the pocket veto case, Kennedy v. Samspon, has influenced, at
least to a minor degree, the propriety of recess appointments during short recesses of the Senate.65
In Kennedy, the court struck down the exercise of the President’s pocket veto power during a six-
day intrasession recess of the Congress. The Constitution provides that a bill becomes law if not
returned by the President after presentment within 10 days, “unless the Congress by their
adjournment prevent its return, in which case it shall not be a law.”66 The case cast doubt on the
validity of all intrasession pocket vetoes, not only those of short duration, and Presidents have
since limited their pocket vetoes to periods between sessions, or after a Congress has finally
adjourned.67 In light of the Kennedy decision, the Department of Justice, while asserting the
validity of a recess appointment during a 33-day intrasession recess, nevertheless informed
President Carter that “in view of the functional affinity between the pocket veto and recess
appointment powers, Presidents during recent years have been hesitant to make recess
appointments during intrasession recesses of the Senate.”68
Although the decision in Kennedy may have moderated the use of the recess appointment power
in some instances, recent Presidents have nonetheless made numerous appointments during
intrasession recesses of 10 days or longer.
• President Reagan, for instance, made a number of intrasession recess
appointments, one during an 18-day recess ending September 8, 1982, nine
during a 23-day recess ending on July 23, 1984, and two during a 13-day recess
ending on January 21, 1985.
• President George H. W. Bush made eight intrasession recess appointments, the
shortest occurring during a 17-day recess.
• President Clinton made numerous intrasession appointments, including five
during an 11-day recess ending on January 22, 1996, five during a 16-day recess
ending on April 15, 1996, one during a nine-day recess ending on June 3, 1996,
and one during an 11-day recess ending on January 20, 2001.

64 See, e.g., Brief for the United States in Opposition to Petition for Writ of Certiorari, at 11, Evans v. Stephens, 387
F.3d 1220 (11th Cir. 2004), cert. denied, 125 S. Ct. 1640 (2005); Memorandum of Points and Authorities in Support of
Defendants’ Opposition to Plaintiffs’ Motion for Partial Summary Judgment, at 24-6, Mackie v. Clinton, 827 F. Supp.
56 (D.D.C. 1993), vacated as moot, 10 F.3d 13 (D.C. Cir. 1993) (arguing that the President may be able to make a
recess appointment during a recess of more than three days because constitutionally, neither chamber can adjourn for
more than three days without the consent of the other, implying that the Framers did not consider one, two, or three day
recesses to be constitutionally significant); 16 U.S. Op. Off. Legal Counsel 15 (1992) (explaining that Attorney General
Daugherty noted that the “line of demarcation cannot be accurately drawn, and “[t]he longstanding view of the
Attorneys General has been that the term ‘recess’ includes intrasession recesses if they are substantial in length”).
65 511 F.2d 430 (D.C. Cir. 1974).
66 U.S. Const., Art. I, § 7, cl. 2.
67 See Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985) (invalidating intersession pocket veto), vacated as moot sub nom.,
Burke v. Barnes, 479 U.S. 361 (1987).
68 3 U.S. Op. Off. Legal Counsel 314, 316 (1979).
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• President George W. Bush continued the practice of making appointments during
brief intrasession recesses, including six such appointments during a recess
ending on April 28, 2003, four during a 10-day recess ending on April 19, 2004,
and, perhaps most controversially, the appointment of William H. Pryor, Jr., to
the Court of Appeals for the Eleventh Circuit on February 20, 2004, on the
seventh day of a 10-day recess ending on February 23, 2004.69
• President Barack Obama has continued the practice of making intrasession recess
appointments. Up through the April 2011 recess, the President has made 28
recess appointments in total, almost all of which were during the second session
of the 111th Congress (January 5, 2010, to December 22, 2010). Many
intrasession recess appointments were made during arguably lengthy recesses of
the Senate; however, President Obama made three recess appointments on July 7,
2010, during an 11-day recess ending July 12, 2010.
Litigation challenging the recess appointment of William H. Pryor, Jr., to the Eleventh Circuit
was brought, and in upholding Pryor’s appointment, the Eleventh Circuit stated:
The Constitution, on its face, does not establish a minimum time that an authorized break in
the Senate must last to give legal force to the President’s appointment power under the
Recess Appointments Clause. And we do not set that limit today. Although a President has
not before appointed a judge to an Article III court during an intrasession recess as short as
the one in this case, appointments to other offices—offices ordinarily requiring Senate
confirmation—have been made during an intrasession recess of about this length or shorter.
Furthermore, several times in the past, fairly short intrasession recesses have given rise to
presidential appointments of judges to Article III courts.70
Authority and Tenure of Recess Appointees
As a fundamental matter, a recess appointee possesses the same legal authority as a confirmed
appointee.71 The commission of a recess appointee expires “at the End of [the Senate’s] next
Session,” whereas the service of a confirmed appointee continues until the end of the statutory
term or at the pleasure of the President, subject to the requirements laid out by Congress in
creating the position.72 When the Senate reconvenes after a recess during the same session, this is

69 Information on recess appointments may be obtained in the Weekly Compilation of Presidential Documents.
70 Evans, 387 F.3d at 1225.
71 See also Hogue, supra note 3, at 4; Swan v. Clinton, 100 F.3d 973, 987 (D.C. Cir. 1996) (recess appointment is not
an “inferior” procedure to appointment with Senate confirmation); Designation of Acting Solicitor Labor, 2002 WL
34461082 (2002) (distinguishing between an temporary designation under the Vacancies Reform Act and a recess
appointment—“An acting official does not hold the office, but only ‘perform[s] the functions and duties of the
office.’[citation omitted] He is not ‘appointed’ to the office but only ‘direct[ed]’ or authorized to discharge its functions
and duties, and thus he receives the pay of his permanent position, not of the office in which he acts. [citation omitted]
A recess appointee, on the other hand, is appointed by one of the methods specified in the Constitution itself, [citation
omitted]; he holds the office; and he receives the pay.”).
72 For an exchange on the issue of whether the Senate could alter its recess practices to bring about earlier termination
of recess appointments, see Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U.
L. Rev. Colloquy 82 (2007); Brian C. Kalt, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy
88 (2007); Seth Barrett Tillman, Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt,
101 Nw. U. L. Rev. Colloquy 94 (2007); Brian C. Kalt, Keeping Tillman Adjournments in their Place: A Rejoinder to
Seth Barrett Tillman, 101 Nw. U. L. Rev. Colloquy 108 (2007).
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considered a continuation of the session and is not regarded as the “next session” within the
meaning of the Clause.73 In practice, this means that a recess appointment could last for almost
two years. On the one hand, if an individual receives an intersession recess appointment—that is,
an appointment between sessions of the same or successive Congresses—such individual could
serve until the end of the following session. On the other hand, if the President makes an
intrasession recess appointment—that is, an appointment during a recess of the Senate in the
middle of a session, like the traditional August recess of a first session of Congress—that
appointment would expire at the end of the second session. In the latter case, the duration of the
appointment will include the rest of the session in progress plus the full length of the session that
follows.74 The President may remove a recess appointee before the expiration of his term, either
by outright removal (assuming he otherwise has discretionary removal authority with respect to
the office) or by having another nominee confirmed by the Senate.75
What Is the Tenure of a Recess Appointee Who Is Also the
Nominee?
Oftentimes an individual given a recess appointment is also the President’s nominee to the office.
With respect to recess appointments to offices that are subject to a fixed statutory term, it has
been held that the new commission for the full statutory term commences from the date of the
recess appointment should the nominee to the office be confirmed upon the reconvening of the
Senate. In other words, the full statutory term relates back to the date on which the person first
assumed office by means of the recess appointment. The determination of this question may also
depend on the particular statutory provision regarding the terms of the office and filling of
vacancies.76 Moreover, even if a recess appointee who is also the President’s nominee is rejected
by the Senate, this does not constitute a removal. The rejected nominee may still hold office
pursuant to his recess appointment under the Constitution until the termination of the session.77
Furthermore, upon the expiration of the constitutional term of a recess appointee, a new recess
appointment, either of the same, or another person, may be made.78 Successive recess
appointments of the same individual, however, may implicate certain statutory pay restrictions,
discussed below. While there are no constitutional limits on how many times the President may

73 41 Op. A.G. 463, 470-71 (1960); 28 Comp. Gen. 121 (1948).
74 See Hogue, supra note 3, at 4. A comparison of two recess appointments during the 108th Congress illustrates the
difference in recess appointment duration that results from the timing of appointments. During the recess between the
first and second sessions of the 108th Congress, President George W. Bush appointed Charles W. Pickering to a court of
appeals judgeship. Several weeks later, during the first recess of the second session of the 108th Congress, President
Bush appointed William H. Pryor, Jr., to a judgeship on another court of appeals. Pickering’s commission expired after
less than 11 months, at the end of the second session of the 108th Congress, whereas Pryor’s commission would have
expired after approximately 22 months, at the end of the first session of the 109th Congress. Although the Pickering and
Pryor recess appointments were only several weeks apart, Pryor would be able to serve nearly twice as long because his
appointment was made during an intrasession recess. Id.
75 41 Op. A.G. at 471.
76 37 Op. A.G. 282 (1933); 9 Comp. Gen. 190 (1929).
77 See In re: Marshalship, 20 Fed. 379 (D. Ala. 1884); 2 Op. A.G. 336 (1830); 21 Comp. Dec. 789 (1915) (Comptroller
of the Currency). Also note that a long-standing pay restriction may be triggered if the rejected nominee were
appointed to a successive recess appointment. The provision would prevent an individual pay to a position “for which
he or she has been nominated after the Senate has voted not to approve the nomination of said person.” 5 U.S.C. note
preceding § 5501. See “Modern Statutory Pay Restriction,” infra.
78 2 Op. A.G. 525 (1832); 3 Op. A.G. 673 (1841); 4 Op. A.G. 523 (1846); 11 Op. A.G. 179 (1865); 28 Comp. Gen. 30,
38 (1948); 28 Comp. Gen. 121, 129 (1948).
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exercise the recess appointment authority with a particular individual, notably, the court in
Staebler v. Carter stated that a President “could probably not consistently with the principle of
checks and balances grant a recess appointment to one rejected for the particular position by a
vote of the Senate.”79
When Is There a Vacancy If There Is a Statutory Holdover
Provision?
Though, under the prevailing interpretation of “Vacanc[y] that may happen,” the President may
exercise his recess appointment authority regardless of whether the vacancy occurred before or
during the recess of the Senate, a vacancy must exist before the President can exercise his recess
appointment authority.80 While this observation may seem self evident, what constitutes a
“vacancy” for the purposes of the Recess Appointments Clause may be complicated by the
presence of “holdover” provisions that regularly accompany fixed term positions. Judicial
interpretation of whether a vacancy exists in light of a holdover provision has been uneven, as
discussed below. It is worth noting, however, that the Department of Justice has generally had the
long-standing view that as a matter of constitutional law, there is a vacancy for purposes of the
Recess Appointments Clause when an appointment for a term of years expires and the officer
continues serving under a holdover provision.81
In Staebler v. Carter,82 the U.S District Court for the District of Columbia held that a Federal
Election Commission (FEC) office was vacant for purposes of the Recess Appointments Clause
when the incumbent continued to exercise authority pursuant to a holdover provision. The Federal
Election Campaign Act’s holdover provision provided: “A member of the Commission may serve
... after the expiration of his own term until his successor has taken office.”83 The court upheld a
recess appointment to the FEC that was still occupied by a holdover Federal Election
Commissioner, based on a determination that the expiration of the holdover commissioner’s
formal term created an immediate and ongoing vacancy.84 The plaintiff in Staebler argued that the
Recess Appointments Clause was designed to operate only when no person is available to occupy
a particular office. Rejecting this argument, the court stated that it was not persuaded this was the
intention of the Framers because under such an interpretation, “the President would be prohibited

79 464 F. Supp. at 601, n.41.
80 See 3 U.S. Op. Off. Legal Counsel 314, 317 (1979) (“A recess appointment presupposes the existence of a vacancy.
If there is an incumbent in the office the recess appointment in itself does not effect a removal of the incumbent so as to
create a vacancy. Before the President can exercise his recess appointment power in such a case he must exercise his
constitutional removal power to the extent it is available, or, if not available, the incumbent must resign” (citations
omitted)).
81 See, e.g., Appointments to the Board of the Legal Services Corporation, 2005 WL 6086110 (2005); The
Inapplicability of the Federal Vacancies Reform Act’s Reporting Obligations for PAS Officers Serving Under Statutory
Holdover Provisions, 1999 WL 33232455 (1999); Whether Members of the Sentencing Commission Who Were
Appointed Prior to the Enactment of a Holdover Statute May Exercise Holdover Rights Pursuant to the Statute, 18 Op.
Off. Legal Counsel 123 (1994); Legal Services Corporation—Effect of Statutory Holdover Provisions, 2 Op. Off. Legal
Counsel 398 (1978).
82 464 F. Supp. 585 (D.D.C. 1979).
83 Id. at 588 (citing FEC statute 2 U.S.C. § 437(a)(2) (1976)).
84 464 F. Supp. at 589. “The plain implication of that language is that a vacancy does indeed occur as a result of and
contemporaneously with the expiration of the term of office not some subsequent time.” Id. at 589-90. Furthermore, the
court found that the term “vacancy” was somewhat defined by the statute, which mandates that “a ‘vacancy occurring
other than by expiration of a term of office’ shall be filled only for the remainder of the unexpired term.” Id.
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from making a recess appointment when a term of office has expired, as long as someone with a
permissive claim to the office is still serving.”85 As part of its reasoning for finding that a vacancy
existed once the statutory term of office expired, the court stated: “In the absence of clearly-
expressed legislative intent, the [c]ourt will not speculate that the Congress sought to achieve a
result which would be both unusual and probably beyond its constitutional power.”86
Conversely, in Mackie v. Clinton87 the U.S. District Court for the District of Columbia held that
the holdover provision for a member of the Board of Governors of the United States Postal
Service did not constitute a vacancy sufficient to allow the appointment of a new member
pursuant to the Recess Appointments Clause. The court in Mackie declared that whether a
vacancy exists for Recess Appointments Clause purposes depends on the wording and structure of
the particular holdover provision. Here, the relevant holdover provision states that a “Governor
may continue to serve after the expiration of his term until his successor has qualified, but not to
exceed one year.”88 In the court’s view, this holdover provision, unlike that in Staebler, creates
not a present vacancy but a “prospective vacancy,”89 such that the Governor holding over would
continue to occupy the office for one year past the end of his term unless he died, resigned, was
lawfully removed, or some other successor qualified.90 The court further emphasized that unlike
the indefinite holdover period in the Federal Election Campaign Act, the one-year holdover
period prevented this board from being susceptible to the concerns expressed by the court in
Staebler. Likewise, the court in Wilkinson v. Legal Servs. Corp.91 also found that a vacancy does
not occur on the Legal Services Corporation (LSC) upon the expiration of a term of office of one
of the Directors. Rather, a vacancy is created upon the “resignation, death or removal of one of
the sitting Directors.”92 Furthermore, Wilkinson distinguished itself from Staebler and Mackie in
finding the holdover provision in the LSC Act mandatory: “Each member of the Board shall
continue to serve until the successor to such member has been appointed and qualified” (emphasis
added). Although the court found that the LSC Act provided no definition of “vacancy” as in
Staebler (see note 84), nor any time limit that a holdover may remain in office as in Mackie, it
held that “the plain meaning of this [holdover] language is that each member of the Board
remains a Director after that person’s term has expired until the new Director has been
‘appointed’ by the President and ‘qualified.’”93 The Wilkinson court concluded that the holdover
provision did not infringe upon the President’s recess appointment power; “it merely defined
when ‘vacancies’ exist on the LSC Board sufficient to trigger application of the Recess
Appointments Clause.”94 The decisions in Staebler, Mackie, and Wilkinson demonstrate that the

85 Id. at 597.
86 Id. at 591. See also McCalpin v. Dana, No. 82-542 (D.D.C. October 5, 1982) (the President could displace holdover
Directors by making recess appointment), appeal dismissed as moot, McCalpin v. Durant, 766 F.2d 535 (D.D.C. 1994).
87 827 F. Supp. 56 (D.D.C. 1993), vacated as moot, 10 F.3d 13 (D.C. Cir. 1993).
88 39 U.S.C. § 202(b).
89 Mackie, 827 F. Supp. at 58.
90 Id.
91 865 F. Supp. 891 (D.D.C. 1994), rev’d on other grounds, Wilkinson v. Legal Servs. Corp., 80 F.3d 535 (D.C. Cir.
1996).
92 Id. at 902.
93 Id. at 900-01.
94 Id. at 902.
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issue of whether a holdover provision constitutes a vacancy for recess appointment purposes may
depend upon the specific language contained therein.95
Statutory Pay Restrictions on Recess Appointees
It should be noted that there exists a statutory framework that governs the filling of vacancies that
falls outside the scope of the Recess Appointments Clause. Since the early history of the
Republic, Congress has established a statutory framework designed to protect the Senate’s
constitutional role in the confirmation process.96 The Vacancies Act, which has legislative roots
dating back to 1795 and was most recently amended in 1998, establishes which individuals may
be designated by the President to temporarily perform the duties and functions of a vacant office
and the length of time a designee may serve.97
Early Statutory Pay Restriction
Notwithstanding the provisions of the Vacancies Act, Congress, in an attempt to check the
President’s use of the Recess Appointment Clause and preserve its role in the appointments
process, has enacted legislation that would restrict the pay of recess appointees. Pay restrictions
on recess appointees have a long history dating back to the mid-19th century. The forerunner to
current statutory provisions was an appropriations rider that Congress attached to the FY1864
Army Appropriations Act. Among other conditions, the rider prohibited the payment of money
from the Treasury: “as a salary, to any person appointed during the recess of the Senate, to fill a
vacancy in any existing office, which vacancy existed while the Senate was in session and is by
law required to be filled by and with the advice and consent of the Senate, until such appointee
shall have been confirmed by the Senate.”98
Under this language, an officer might have to serve without pay, until such time as the Senate
consented to the nomination. These pay restrictions were enacted in response to President
Lincoln’s recess appointments of hundreds of military officers in violation of statutory
authorization.99 Although the interpretation of “Vacancies that may happen” was still in flux, as
discussed above, Senator Fessenden, elaborating on the intent of the appropriations rider, stated:
“It may not be in our power to prevent the appointment, but it is in our power to prevent the
payment; and when payment is prevented, I think that will probably put an end to the habit of
making such appointments.”100

95 See Hogue, supra note 3, supra, at 3-4.
96 See also CRS Report RS21412, Temporarily Filling Presidentially Appointed, Senate-Confirmed Positions, by Henry
B. Hogue.
97 5 U.S.C. §§ 3345-3349d. The Vacancies Act explicitly states that it is the exclusive means for authorizing the
temporary filling of advice and consent positions unless otherwise expressly provided in law, or unless the President
exercises his authority under the Recess Appointments Clause. The original version of the act was enacted in 1868, 15
Stat. 168 (1868), and its time limitations that limited the duration of a temporary assignee to six months also date back
to 1795. 1 Stat 415 (1795).
98 12 Stat. 642, 646 (1863). The appropriations rider also provided that no money was to be paid from the Treasury “to
any person acting or assuming to act as an officer, civil, military, or naval, as salary in any office, which is not
authorized by some previously existing law, unless where such office shall be subsequently sanctioned by law.” Id.
99 See 33 Cong. Globe 564-65 (1863).
100 33 Cong. Globe 565 (1863).
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Further restrictions on the President’s appointment and removal powers were enacted by the
passage of the Tenure of Office Act in 1867.101 Section 2 of the act purported to limit the
President’s power to suspend officers during a recess to instances where it was determined to the
satisfaction of the President that an officer was guilty of misconduct in office, crime, or was
incapable or legally disqualified to hold office. Removals made during recesses were to be
reported to the Senate after it reconvened; and, if the Senate did not concur with the suspension,
the suspended officer was to “resume the functions of his office.”102 Section 3 of the act purported
to limit the President’s authority to make recess appointments, providing that such an
appointment could be made only if the vacancy occurred by death or resignation. If a recess
appointee’s nomination was not thereafter confirmed in the next session of the Senate, the office
was to “remain in abeyance.”103 The act also delineated criminal penalties and cut-off of salary
for violations of its provisions. President Andrew Johnson, who believed the act to
unconstitutionally infringe upon the power of the Executive, ignored the provisions of the act
when he removed Secretary of War Edwin Stanton from office, undoubtedly precipitating his
impeachment.104 Congress repealed part of the act in 1869105 and then entirely in 1887.106 Though
the act was not challenged in the courts, similar limits on the President’s removal power were
struck down as unconstitutional in the 1926 decision of Myers v. United States.107 The Supreme
Court stated: “we have no hesitation in holding that ... the Tenure of Office Act of 1867, in so far
as it attempted to prevent the President from removing executive officers who had been appointed
by him by and with the advice and consent of the Senate, was invalid, and that subsequent
legislation of the same effect was equally so.”108
Modern Statutory Pay Restriction
Even though these types of congressional restrictions on the President’s removal powers have
been held unconstitutional, the pay restriction for recess appointees that was originally enacted in
1863 remained intact until it was amended in 1940 to provide exceptions to the flat prohibition,
making it less burdensome on officeholders. The pay restriction on recess appointees is currently
codified at 5 U.S.C. § 5503. It generally provides that an individual who is given a recess
appointment to fill a vacancy in an existing office may not receive payment from the Treasury of
the United States109 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.110 Such an individual can

101 14 Stat. 430 (1867).
102 Id.
103 Id. at 431.
104 See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 40 Duke L.J. 1,
87-88 (1999).
105 16 Stat. 6 (1869).
106 24 Stat. 500 (1887).
107 272 U.S. 52 (1926).
108 Id. at 176.
109 This pay restriction to recess appointees applies to those positions that receive pay from the Treasury of the United
States. See, e.g., Permissibility of Recess Appointments of Directors of the Federal Housing Finance Board, 15 Op.
Off. Legal Counse1 91, 93 (1991) (concluding that because none of the payment for the Directors came from the
Treasury that the pay restriction of 5 U.S.C. § 5503 did not apply to the recess appointees).
110 5 U.S.C. § 5503(a).
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receive pay once he has been confirmed by the Senate. However, there are three exceptions under
which a recess appointee may be paid:
1. if the vacancy arose within 30 days before the end of the session;
2. if, at the end of the session, a nomination is pending and the nomination is not of
an individual who had been given a recess appointment during the preceding
recess; or
3. if the pending nomination was rejected 30 days before the session ended and an
individual, other than the one whose nomination was rejected, is given the recess
appointment.111
Interestingly, the second exception, which allows a recess appointee to be paid so long as there is
a pending nomination before the Senate that is not of the person who had been appointed during
the preceding recess, implicitly prevents individuals, who have a pending nomination and who
received a recess appointment in the preceding recess, from being paid. In other words, although
there is no limitation on how many times the President may recess appoint the same individual,
this provision prevents payment to be made to successive recess appointees if that recess
appointee is the current nominee, which is oftentimes the situation.112
Furthermore, section 5503(b) provides that a nomination to fill a vacancy falling within any of the
aforementioned exceptions must be submitted to the Senate not later than 40 days after the
beginning of the next session of the Senate. 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. Though an individual may serve as a recess appointee through the expiration of the
commission, another long-standing appropriations rider that reinforces the third exception under
§ 5503 prevents any payment to an individual to fill a position “for which he or she has been
nominated after the Senate has voted not to approve the nomination of said person.”113
The three exceptions, which would allow payment, were designed, as stated in a House Report,
“to render the existing prohibition on the payment of salaries more flexible.”114 The report further
explained that
[f]rom a practical standpoint it frequently creates difficulties especially in those cases in
which a vacancy arose shortly before the close of a congressional session, leaving
insufficient time to fill the vacancy by nomination and confirmation. Difficulties also arise in

111 5 U.S.C. § 5503(a)(1)-(3).
112 This interpretation has been supported by the 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.” 15 Op. O.L.C. 93 (1991). See also 6 Op. O.L.C. 585 (1982); 41 Op. A.G. 463 (1960).
113 5 U.S.C. note preceding § 5501; P.L. 110-161, 121 Stat. 2021 (2007) (“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.”); See, e.g., P.L. 108-447, Div. H,
Sec. 609; 118 Stat. 3274. It is also worth noting that for FY2009, Congress enacted another permanent appropriations
rider that would prohibit payment “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.” P.L. 111-8; 123 Stat. 693 (2009). Though this provision
seems designed to prevent payment to persons appointed 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.”
114 H.R. Rept. 2646 (1940).
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cases in which a session terminates before the Senate acts on pending nominations, as has at
times happened.115
Unlike the Recess Appointments Clause where the term “Session” indicates the adjournment sine
die of the Senate, the term “session” for purposes of § 5503 refers to any time the Senate
convenes. The version of this law preceding § 5503 used the phrase “termination of the session”
as opposed to the phrase “end of the session,” which now appears in § 5503(a)(1). This revision
was not intended as a substantive change, however.116 The “termination” phrase was interpreted
by the Comptroller General to encompass “any adjournment, whether final or not, in
contemplation of a recess covering a substantial period of time.”117
Furthermore, the argument is sometimes forwarded that a recess appointee, who is generally
barred from receiving pay unless one of the three exceptions applies, would be then barred from
serving because of a provision of the Anti-Deficiency Act, namely 31 U.S.C. § 1342.118 This
provision states that “an officer or employee of the United States government or of the District of
Columbia government may not accept voluntary services for either government or employ
personal services exceeding that authorized by law except for emergencies involving the safety of
human life or the protection of property.”119 Because the voluntary services prohibition is
designed to prevent federal agencies from seeking additional appropriations,120 interpretations of
§ 1342 have concluded that although the section prohibits federal entities from accepting
voluntary services, it does not prohibit acceptance of gratuitous services for which no future
claim for compensation will be made.121 Pursuant to this distinction, the Government
Accountability Office (GAO) has ruled that compensation that is not fixed by statute may be
waived, so long as the waiver renders any service gratuitous. Conversely, GAO has ruled that
compensation that is fixed by statute may not be waived and deemed gratuitous without specific
statutory authority.122
While § 1342 may be controlling with regard to prohibiting officers and employees from
accepting voluntary services, there does not appear to be any basis for its application to recess
appointees, who are statutorily barred from receiving pay under 5 U.S.C § 5503, regardless of
whether the position at issue carries a discretionary or fixed rate of pay. In other words, it does
not seem that § 1342, which prevents the government from accepting voluntary services from
officers and employees, would also prevent recess appointees, who are already statutorily barred
from receiving pay, from serving in government. Because the President’s appointment power,
including the power to make recess appointments, arises from the text of the Constitution, it is
difficult to formulate a rationale that would support the conclusion that a congressional enactment
may prevent the service of a recess appointee who is already prevented from receiving pay, as the

115 Id. See also 28 Comp. Gen. 30 (1948).
116 See S. Rept. 1380 at 105 (1966).
117 28 Comp. Gen. 30, 37 (1948); see also 41 Op. A.G.463, 473-75 (1960).
118 See Trish Turner, “Democrats Fight Sam Fox Nomination, Charge He Cannot Serve Without Pay,” Fox News Corp.,
April 5, 2007, available at http://www.foxnews.com/story/0,2933,264420,00.html.
119 31 U.S.C. § 1342.
120 The prohibition codified at § 1342 was enacted in response to a practice common late in the 19th century under
which lower grade government employees were asked to “volunteer” their services for overtime work and agencies
subsequently requested additional appropriations from Congress to pay them. Government Accountability Office,
Office of the General Counsel, II Principles of Federal Appropriations Law, 6-95, 3d Ed. (February 2006).
121 Id. at 95-96.
122 Id. at 102.
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pay proscription itself clearly contemplates that recess appointees falling within its purview
would continue to serve, further obviating the application of § 1342.123
These limitations are designed to protect the Senate’s advice and consent function. By targeting
the compensation of appointees as opposed to the President’s recess appointment power itself, the
limitations act as indirect controls on recess appointments, and their constitutionality has not been
adjudicated. However, the court in Staebler commented that “if any and all restrictions on the
President’s recess appointment power, however limited, are prohibited by the Constitution,
5 U.S.C. § 5503 ... might also be invalid.”124 Additional constitutional concerns might arise from
the application of these statutory restrictions to judicial recess appointees,125 though Attorneys
General have consistently advised Presidents of the applicability of the pay restriction statutes
without raising constitutional concerns.126
The concerns raised in Staebler, which questioned the constitutionality of the restrictions with
regard to recess appointments, coupled with the scope of the decision in Evans v. Stephens, could
be seen as arguably giving rise to an expansive interpretation of the President’s power under the
Recess Appointments Clause. As touched upon above, the U.S. Court of Appeals for the Eleventh
Circuit in Evans upheld the intrasession recess appointment of William H. Pryor, Jr., to that court,
based upon a broad interpretation of the President’s authority under the Clause. The majority’s
acceptance of brief intrasession recess appointments, together with the potential constitutional
invalidity of the statutory restrictions could lead to a dynamic whereby the President would have
a legal and constitutional basis upon which to completely bypass the Senate confirmation process,
in that the President would be empowered to make successive recess appointments during short
recesses with the practical effect of enabling an appointee to serve throughout the course of an
Administration without submitting to the Senate confirmation process. Recognizing this, Judge
Barkett, in a dissenting opinion, argued that a literal and restrictive interpretation of the Clause
was necessitated by the “real, concrete concern that the understanding of the recess appointment
power embraced by the majority will allow the President to repeatedly bypass the role the
Framers intended the Senate to play in reviewing presidential nominees.”127 In light of the
decisions in Staebler and Evans, the development of this dynamic could arguably transform the
Recess Appointments Clause from the supplementary and auxiliary mechanism, discussed by
Alexander Hamilton, into a more significant grant of presidential power.128

123 The GAO has relied upon this dynamic in determining that the voluntary services prohibition does not preclude the
service of a recess appointee falling within the pay proscriptions codified at § 5503, even in instances where the
compensation of the position in question is fixed by statute. Addressing the recess appointment of Sam Fox to serve as
Ambassador to Belgium under circumstances triggering a § 5503 payment prohibition, the GAO noted that while the
rate of compensation for such a position is set by statute, “[t]he Department of State may allow him to serve without
compensation, despite the voluntary services prohibition of the Antideficiency Act, because Mr. Fox’s service would
not result in a coercive deficiency or a subsequent claim against the Government, which was the original justification
behind the prohibition. Mr. Fox could not make such a claim because of the statutory bar of section 5503.” Government
Accountability Office, Recess Appointment of Sam Fox, B-309301 at 7-8 (June 8, 2007). The GAO further stated that
“an alternative interpretation that would directly curtail the President’s power to make a recess appointment to Mr. Fox
would raise serious constitutional concerns.” Id. at 8.
124 464 F. Supp. 585, 596 (D.D.C. 1979).
125 See Halstead, supra note 51, at 11.
126 See, e.g., 15 U.S. Op. Off. Legal Counsel 91 (1991); 41 Op. A.G. 463, 472-80 (1960).
127 Evans, 387 F.3d at 1235.
128 Note that in denying the petition for writ of certiorari, Justice Stevens commented that “it would be a mistake to
assume that our disposition of this petition constitutes a decision on the merits of whether the President has the
constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made
(continued...)
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Over time, Congress has also attempted to influence presidential action in the recess appointment
context through resolutions. Resolutions objecting to Madison’s appointments of envoys to Great
Britain were debated in 1814, but not brought to a vote.129 It is arguable that a “sense of the
Senate” resolution enacted in 1960 expressing reservation over several recess appointments to the
Supreme Court has influenced presidential exercise of the recess appointment power in the
judicial context.130 Prompted by President Eisenhower’s recess appointments of Earl Warren,
William J. Brennan, Jr., and Potter Stewart to the Supreme Court in 1953, 1956, and 1958,
respectively, Senator Hart introduced S.Res. 334 to discourage such appointments. The resolution
provided that it was the sense of the Senate that this type of recess appointment “is not wholly
consistent with the best interests of the Supreme Court, the nominee who may be involved, the
litigants before the Court, nor indeed the people of the United States.” The resolution further
announced the position that such appointments should be avoided “except under unusual and
urgent circumstances.”131 No recess appointments to the Supreme Court have been made since the
enactment of this resolution, and there has been an attendant decrease in the number of judicial
recess appointments generally, with only four such appointments occurring since 1960. The use of
the recess appointment power in the judicial context remains a contentious issue in both the
political and judicial spheres, as indicated by the 2004 decision in Evans.
In recent years, the Senate has employed certain procedures that were thought to prevent the
President from making recess appointments. Specifically, it held several “pro forma” sessions,
which are “brief meeting[s] (sometimes only several seconds) of the Senate in which no business
is conducted. [They are] usually held to satisfy the constitutional obligation that neither chamber
can adjourn for more than three days without the consent of the other.”132 For example, on
November 16, 2007, the Senate Majority Leader Harry Reid announced that the Senate would “be
coming in for pro forma sessions during the Thanksgiving holiday to prevent recess
appointments.”133 The Senate recessed later that day, and pro forma meetings were convened on
November 20, 23, 27, and 29, with no business conducted. The Senate next conducted business
after reconvening on December 3, 2007. Similar procedures were followed during the remainder
of President Bush’s term, and many perceived that this limited the ability of the President to make
recess appointments during those periods.134 During the 111th Congress, the Senate utilized these
procedures during the latter part of the second session. It structured its 2010 pre-election break as
a series of shorter recesses separated by pro forma sessions. The use of this approach during two
successive Congresses suggests that it may now be regarded as an ongoing tool available to the
Senate. Should this practice continue, it may lend support to the argument expressed by DOJ that,

(...continued)
absent consent of the Senate during short intrasession ‘recesses.’” Evans v. Stephens, 544 U.S. 942, 943 (2004) (order
denying petition for writ of certiorari).
129 See Haynes, supra note 29, at 772-73.
130 106 Cong. Rec. 18145 (1960).
131 106 Cong. Rec. 12761 (1960).
132 Glossary, http://www.senate.gov.
133 Senator Harry Reid, “Recess Appointments,” remarks in the Senate, Congressional Record, daily edition, vol. 153
(November 16, 2007), p. S14609. Though this statement specifically indicates the use of pro forma sessions to prevent
recess appointments, Senator Reid on at least one other occasion indicated that the Senate would be holding pro forma
sessions for different purposes. On September 17, 2008, he stated, “We are going to have to get some committee
hearings underway, which is why we are not going to adjourn. We will be in pro forma session so committees can still
meet, though we won’t have any activities here on the floor as relates to these markets.” Senator Harry Reid, “The
Economy,” remarks in the Senate, Congressional Record, daily edition, vol. 154 (September 17, 2008), p. S8907.
134 See Hogue, supra note 3, at 2-3.
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notwithstanding the scope of the Clause expressed by early Attorneys General, the President may
make recess appointments during any brief recess of the Senate in excess of three days.
Conclusion
While generally perceived as a straightforward, pragmatic provision designed to foster
administrative continuity, the history of the Recess Appointments Clause shows that it also has
been employed by Presidents for tactical and political purposes throughout the history of the
Republic. As such, the Clause has been the source of recurrent controversy, beginning with the
Administration of George Washington, and continuing to the current Administration of Barack
Obama. Historical interpretation and judicial treatment of the Clause have fleshed out many of its
inherent ambiguities, to the extent that there is now precedent to support the propriety of recess
appointments regardless of when the vacancy at issue arose, and to support such appointments
during both intersession and intrasession recesses. However, many tensions remain regarding the
proper scope and application of the Clause. These tensions, coupled with the lack of any
definitive consideration by the Supreme Court, would thus seem to ensure that the Clause will be
a continuing source of political and legal controversy.

Author Contact Information

Vivian S. Chu

Legislative Attorney
vchu@crs.loc.gov, 7-4576


Acknowledgments
T. J. Halstead was the initial author of this report.

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