Recess Appointments: Frequently Asked
Questions
Henry B. Hogue
Specialist in American National Government
June 7, 2013
Congressional Research Service
7-5700
www.crs.gov
RS21308
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Recess Appointments: Frequently Asked Questions
Summary
Under the Constitution (Article II, §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, §2, clause 3). This report supplies brief answers to some frequently asked
questions regarding recess appointments.
Additional information on recess appointments may be found in other CRS reports: CRS Report
R42329, Recess Appointments Made by President Barack Obama, by Henry B. Hogue and
Maureen Bearden; CRS Report RL33310, Recess Appointments Made by President George W.
Bush, by Henry B. Hogue and Maureen Bearden; CRS Report RL33009, Recess Appointments: A
Legal Overview, by Vivian S. Chu; and CRS Report RL32971, Judicial Recess Appointments: A
Legal Overview, by T. J. Halstead.
Information and analysis regarding recent federal court cases related to recess appointments may
be found in CRS Report R43030, The Recess Appointment Power After Noel Canning v. NLRB:
Constitutional Implications, by Todd Garvey and David H. Carpenter; CRS Report R43032,
Practical Implications of Noel Canning on the NLRB and CFPB, by David H. Carpenter and
Todd Garvey; and CRS Report WSLG521, 3rd Circuit: President’s Recess Appointment Power
Only Extends to Intersession Recesses, by David H. Carpenter.
This report will be updated as events warrant.
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Recess Appointments: Frequently Asked Questions
Contents
What Is the Purpose of a Recess Appointment? ........................................................................ 1
How Often Have Recent Presidents Made Recess Appointments? ........................................... 1
What Is a “Session”? ................................................................................................................. 2
What Is a “Recess”? .................................................................................................................. 2
How Long Must the Senate Be in Recess Before a President May Make a Recess
Appointment? ......................................................................................................................... 3
Recess Appointments of January 2012 ................................................................................ 4
Historical Examples of Recess Appointments During Brief Adjournments ....................... 5
What Constitutes a “Vacancy”? ................................................................................................. 6
How Long Does a Recess Appointment Last? .......................................................................... 7
Must a Recess Appointee Be Nominated to the Position as Well? ............................................ 7
What Is the Difference Between the Authority and Pay of a Confirmed Appointee and
Those of a Recess Appointee? ................................................................................................ 8
Are There any Legal Constraints on the President’s Recess Appointment Power? ................... 8
What Happens If the Nomination of a Recess Appointee Is Rejected? ..................................... 9
Can the President Make Successive Recess Appointments to the Same Position? ................... 9
Can a Recess Appointment Be Used to Fill a Vacancy on the Federal Bench? ....................... 10
Can Congress Prevent Recess Appointments? ........................................................................ 10
I. Practices Implemented Unilaterally by the Senate......................................................... 11
II. Senate Practices Necessitated by the Absence of House Consent to Adjourn .............. 12
III. Appointments During a Three-day Recess Between Two Pro Forma Sessions .......... 13
Contacts
Author Contact Information........................................................................................................... 13
Congressional Research Service
Recess Appointments: Frequently Asked Questions
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 II, §2, clause 3). The records of debate at the Constitutional
Convention do not provide much evidence of the framers’ intentions in the Recess Appointment
Clause. A discussion of the clause by Alexander Hamilton, in The Federalist Papers, suggests
that its purpose was to provide an alternative method of appointment that would allow the filling
of vacancies “without delay” during periods of Senate absence.1 Opinions by later Attorneys
General also supported this general notion, suggesting that the purpose of the clause was 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.2 This interpretation is supported 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, the Senate was, on average, in session
less than half the year.3 Throughout the history of the republic, Presidents have also sometimes
used the recess appointment power for political reasons. For example, 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, 95 to full-time positions. President
George W. Bush made 171 recess appointments, of which 99 were to full-time positions.4 As of
June 4, 2013, President Barack Obama had made 32 recess appointments, all to full-time
positions.5
1 The Federalist Papers, ed. Clinton Rossiter (New York: New American Library, 1961). Hamilton described the
Recess Appointment Clause as a “supplement to the [Appointments Clause] for the purpose of establishing an auxiliary
method of appointment, in cases to which the general method was inadequate.” He went on to write that the “ordinary
power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the
session of the Senate; but as it would have been improper to oblige this body to be continually in session for the
appointment of officers, and as vacancies might happen in their recess, which it might be necessary for the public
service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make
temporary appointments ‘during the recess of the Senate, by granting commissions which shall expire at the end of
their next session’” (pp. 409-410) (emphasis in the original).
2 An opinion by Attorney General William Wirt in 1823 concerning the meaning of the word “happen” in the clause
provides one example. In part, he stated, “The substantial purpose of the constitution was to keep these offices filled;
and the powers adequate to this purpose were intended to be conveyed.” 1 Op. A.G. 631, 632 (1823).
3 U.S. Congress, Joint Committee on Printing, 2009-2010 Official Congressional Directory 111th Congress, S. Pub.
111-14, 111th Cong. (Washington: GPO, 2009), pp. 526-542.
4 For more, see CRS Report RL33310, Recess Appointments Made by President George W. Bush, by Henry B. Hogue
and Maureen Bearden.
5 For more, see CRS Report R42329, Recess Appointments Made by President Barack Obama, by Henry B. Hogue and
Maureen Bearden.
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What Is a “Session”?
For the purposes of the Recess Appointment Clause, the word “Session” refers to the period
between the reconvening of the Senate after a sine die adjournment and the next sine die
adjournment. The Twentieth Amendment to the Constitution provides that Congress will meet
annually on January 3, “unless they shall by law appoint a different day.”6 Generally, a session of
the Senate begins on that day and continues until sine die adjournment, usually in the fall.
Congress normally adjourns sine die by adopting a concurrent resolution through which each
house grants permission to the other to adjourn sine die.7 These adjournment resolutions today
usually authorize leaders of each chamber to call it back into session after the sine die
adjournment. If this power is exercised, the previous session resumes and continues until the
actual sine die adjournment is determined, usually pursuant to another concurrent resolution of
adjournment.8 In practice, nonetheless, an initial sine die adjournment is generally considered to
be the end of the Senate’s session for purposes of the expiration of a recess appointment.9
What Is a “Recess”?
Generally, a recess is a break in House or Senate proceedings. Neither chamber may take a break
of more than three days without the consent of the other.10 Such consent is usually provided
through a concurrent resolution. A recess within a session is referred to as an intrasession recess.
In recent decades, Congress has typically had 5-11 intrasession recesses of more than three days,
usually in conjunction with national holidays. The break between the sine die adjournment of one
session and the convening of the next is referred to as an intersession recess. In recent decades,
each Congress has consisted of two 9-12 month sessions separated by an intersession recess. The
period between the second session of one Congress and the first session of the following
Congress is also an intersession recess.
Recent Presidents have made both intersession and intrasession recess appointments. Intrasession
recess appointments were unusual, however, prior to the 1940s, in part because intrasession
recesses were less common at that time. Intrasession recess appointments have sometimes
provoked controversy in the Senate, and some academic literature also has called their legitimacy
into question.11 Legal opinions have also varied on this issue over time.12 A recess appointment
6 U.S. Constitution, XX Amend., §2.
7 A concurrent resolution requires adoption by both houses, but does not require the President’s signature.
8 In the absence of a concurrent resolution, adjournment sine die is determined by the arrival of the constitutionally
mandated convening of a new session on January 3.
9 See, e.g., 41 Op. A.G. 463 (1960), which, in the context of a discussion of the expiration of recess appointments,
refers to sine die adjournment at the end of a Senate session.
10 U.S. Constitution, Art. I, §5, cl. 4.
11 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 Counsel, “Memorandum of United States Senate as Amicus Curiae in Support of Plaintiffs’ Motion, and in
Opposition to Defendants’ Motions, for Summary Judgment on Count Two,” (draft pertaining to U.S. District Court for
the District of Columbia, Mackie v. Clinton, Civ. Action No. 93-0032-LFO), Congressional Record, vol. 139, July 1,
1993, pp. 15267-15274. For academic literature, see, e.g., Michael A. Carrier, “When Is the Senate in Recess for
Purposes of the Recess Appointments Clause?” Michigan Law Review, vol. 92, June 1994.
12 For information and analysis related to the legal aspects of recess appointments, in general, see CRS Report
RL33009, Recess Appointments: A Legal Overview, by Vivian S. Chu.
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made during an intrasession recess is usually of longer duration than a recess appointment made
during an intersession recess. (See below, “How Long Does a Recess Appointment Last?”)
Notwithstanding the legal opinions and practices of recent decades, a Department of Justice legal
opinion and two federal appeals court decisions related to four controversial recess appointments
made by President Barack Obama on January 4, 2012, raised questions about what a “recess” is
with regard to the recess appointment power. The Justice Department argued that the
determination of whether a “recess” is underway is not merely a matter of observing formal
Senate scheduling. Rather, the President may also determine whether a recess is underway by
assessing whether the Senate is available to participate in the advice and consent process.13 (See
below, “Can Congress Prevent Recess Appointments?”) In a January 25, 2013, decision, the U.S.
Court of Appeals for the D.C. Circuit held that, for purposes of the Recess Appointments Clause,
“the Recess” means only intersession recesses.14 A May 16, 2013, decision of the U.S. Court of
Appeals for the Third Circuit also held that the President’s recess appointment power extends
only to intersession recesses.15 The long term impact on recess appointment practice of the Justice
Department opinion and the appeals court decisions was not immediately clear.16
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 time, the Department of Justice, through
Attorneys General and Office of Legal Counsel Opinions, has expressed differing views on this
question, and no settled understanding appears to exist. One view, which was discussed by
Attorney General Harry M. Daugherty in a 1921 opinion, implied that a linkage might be
established between the meaning of “the Recess of the Senate,” for Recess Appointments Clause
purposes, and the meaning of “adjourn for more than three days,” for purposes of the
Adjournment Clause.17 In the opinion, Daugherty argued that the President had the authority to
make a recess appointment during an intrasession recess of 29 days. He stated,
13 “Lawfulness of Recess Appointments during a Recess of the Senate notwithstanding Periodic Pro Forma Sessions,”
Memorandum Opinion for the Counsel to the President, January 6, 2012, available at http://www.justice.gov/olc/2012/
pro-forma-sessions-opinion.pdf.
14 Noel Canning v. Nat’l Labor Relations Bd., 705 F.3d 490, 499 (D.C. Cir. 2013). For more on Noel Canning, see CRS
Report R43030, The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications, by Todd
Garvey and David H. Carpenter.
15 See CRS Report WSLG521, 3rd Circuit: President’s Recess Appointment Power Only Extends to Intersession
Recesses, by David H. Carpenter.
16 For more on the impact of the first appeals court decision, see CRS Report R43032, Practical Implications of Noel
Canning on the NLRB and CFPB, by David H. Carpenter and Todd Garvey.
17 U.S. Const. Article I, Section 5, clause 4. This clause provides that “Neither House, during the Session of Congress,
shall, without the Consent of the other, adjourn for more than three days ....” In practice, the period has often extended
to not more than four calendar days over a weekend. Under House precedents, “The House of Representatives in
adjourning for not more than three days must take into the count either the day of adjourning or the day of the meeting,
and Sunday is not taken into account in making this computation.” U.S. Congress, House, Constitution, Jefferson’s
Manual and Rules of the House of Representatives of the United States, One Hundred Twelfth Congress, 111th Cong.,
2nd sess., H.Doc. 111-157 (Washington: GPO, 2011), Sec. 83. Senate practice appears to be consistent with this
approach. Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure: Precedents and Practices, 101st Cong.,
2nd Sess., S.Doc. 101-28 (Washington: GPO, 1992), pp. 15-16, 1265.
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If the President is empowered to make recess appointments during the present adjournment,
does it not necessarily follow that the power exists if an adjournment for only 2 instead of 28
days is taken? I unhesitatingly answer this by saying no. Under the Constitution neither
house can adjourn for more than three days without the consent of the other.18
In 1993, a brief submitted by the Department of Justice in the case Mackie v. Clinton articulated
this argument more fully. Arguing that the President had made the appointment at issue in the
case during a recess of sufficient length, the brief stated:
If the recess here at issue were of three days or less, a closer question would be presented.
The Constitution restricts the Senate’s ability to adjourn its session for more than three days
without obtaining the consent of the House of Representatives.... It might be argued that this
means that the Framers did not consider one, two and three day recesses to be
constitutionally significant.…
Apart from the three-day requirement noted above, the Constitution provides no basis for
limiting the recess to a specific number of days. Whatever number of days is deemed
required, that number would of necessity be completely arbitrary.19
The logic of the argument laid out in this brief appears to underlie congressional practices,
intended to block recess appointments, that were first implemented during the 110th Congress.
(See below, “Can Congress Prevent Recess Appointments?”)
Between the beginning of the Reagan presidency in January 1981 and the end of December 2011,
it appears that the shortest intersession recess during which a President made a recess
appointment was 11 days,20 and the shortest intrasession recess during which a President made a
recess appointment was 10 days.21
Recess Appointments of January 2012
On January 4, 2012, during a three-day recess between two pro forma sessions of the Senate, the
White House announced President Obama’s intent to make four recess appointments. The
appointments took place shortly after the second session of the 112th Congress convened and thus
was not an intersession recess, but rather an intrasession recess. The recess and pro forma
sessions had been set as part of the Senate schedule for the period of December 20, 2011, through
January 23, 2012, established by unanimous consent on December 17, 2011.22 This schedule
18 33 Op. A.G. 20, at 24-25 (1921).
19 Memorandum of Points and Authorities in Support of Defendants’ Opposition to Plaintiffs’ Motion for Partial
Summary Judgment, at 24-26, Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993), vacated as moot, 10 F.3d 13 (D.C.
Cir. 1993), pp. 25-26.
20 President Ronald W. Reagan recess appointed John C. Miller to be a member of the National Labor Relations Board
on December 23, 1982, during a recess that began that day and lasted until the Senate reconvened on January 3, 1983.
(U.S. President (Reagan), “Digest of Other White House Announcements,” Weekly Compilation of Presidential
Documents, vol. 18 (December 23, 1982), p. 1662.)
21 On May 31, 1996, President William J. Clinton recess appointed Johnny H. Hayes to be a member of the Tennessee
Valley Authority. (U.S. President (Clinton), “Digest of Other White House Announcements,” Weekly Compilation of
Presidential Documents, vol. 32 (May 31, 1996), p. 980.) The Senate had adjourned on May 24, 1996, and reconvened
on June 3.
22 Sen. Ron Wyden, “Orders for Tuesday, December 20, 2011 through Monday, January 23, 2012,” remarks in the
Senate, Congressional Record, vol. 157, part 195 (December 17, 2011), pp. S8783-S8784.
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provided for a series of pro forma sessions with intervening three- and four-day recesses. Pro
forma sessions are short meetings of the Senate or the House held for the purpose of avoiding a
recess of more than three days and therefore the necessity of obtaining the consent of the other
House. Normally, it is understood that during a pro forma session no business will be
conducted.23
Shortly after these recess appointments, the Department of Justice Office of Legal Counsel (OLC)
released a related opinion. The department argued that the determination of whether a “recess” is
underway is not merely a matter of observing formal Senate scheduling. Rather, the President
may also determine whether a recess is underway by assessing whether the Senate is available to
participate in the advice and consent process.24 It appears that such a determination was made in
this instance, and that the Administration viewed the period during which these recess
appointments were made as a 20-day intrasession recess beginning on January 3, 2012, and
ending on January 20. The OLC memorandum pointedly did not answer the question of whether
“an intrasession recess of three days or fewer constitutes a recess under the Recess Appointments
Clause.”25
Historical Examples of Recess Appointments During Brief Adjournments
As previously noted, between the beginning of the Reagan presidency in January 1981 and the
end of December 2011, it appears that the shortest intersession recess during which a President
made a recess appointment was 11 days, and the shortest intrasession recess during which a
President made a recess appointment was 10 days. CRS data on recess appointments before this
period, which were collected from publically available sources, are incomplete. Similarly, CRS
data concerning the historical use of pro forma sessions by the Senate are incomplete.
From the available data, two historical occasions have been identified on which the President has
made recess appointments during recesses of three days or less. In contrast to the January 2012
intrasession recess appointments by President Obama, each of these instances occurred during the
period of transition between sessions.
On one of these occasions, the President made a recess appointment during an intersession recess
of three days or less, where the Senate had adjourned sine die under the terms of a concurrent
resolution. The adjournment began when the Senate adjourned the second session of the 80th
Congress sine die on December 31, 1948, and concluded when the first session of the 81st
Congress was convened on January 3, 1949. On January 1, 1949, during this three-day
adjournment between sessions, official records indicate that President Harry S. Truman recess
appointed Oswald Ryan to be a member of the Civil Aeronautics Board.26 Ryan had been serving
23 Business has sometimes been conducted during pro forma sessions, however. For example, on December 23, 2011,
during the period under discussion here, the Senate convened as scheduled and, by unanimous consent, agreed to a
process for passage of the Temporary Payroll Tax Cut Continuation Act of 2011 (Sen. Harry Reid, “Unanimous
Consent Agreement” remarks in the Senate, Congressional Record, daily edition, vol. 157 (December 23, 2011), p.
S8789).
24 “Lawfulness of Recess Appointments during a Recess of the Senate notwithstanding Periodic Pro Forma Sessions,”
Memorandum Opinion for the Counsel to the President, January 6, 2012, available at http://www.justice.gov/olc/2012/
pro-forma-sessions-opinion.pdf.
25 Ibid., p. 23.
26 Declaration of Ronald R. Geisler, exhibit 2, page 2, Bowers v. Moffett, Civil Action No. 82-0195 (D.D.C. 1982).
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on the board, and President Truman appointed him to a new term. Notably, the adoption of a
concurrent resolution to adjourn sine die prior to this short intersession recess distinguishes it
from the short intrasession recesses resulting from practices during the 112th Congress, where no
concurrent resolution had been introduced.
On the other of the two occasions, the President made recess appointments during a transition
between sessions of less than a day in length, where no concurrent resolution regarding the
transition between sessions had been adopted. In fact, it appears that little time elapsed between
the sessions on this occasion. When the first session of the 58th Congress ended, at noon on
December 7, 1903, and the second session began soon thereafter, President Theodore Roosevelt
made over 160 recess appointments—mostly of military officers. President Roosevelt treated the
period between these sessions as a “constructive recess.”
The historical instances cited here indicate that recess appointments have, on occasion, been
attempted during sine die adjournments of three days or fewer. Nevertheless, the instances cited
here each have unique characteristics, and their potential applicability under current practices and
conditions remains open to question.27
What Constitutes a “Vacancy”?
Historically, questions have arisen about the meaning of the constitutional phrase “Vacancies that
may happen during the Recess of the Senate.” Does “happen” mean “exist” or “occur”? The first
interpretation would allow the President to make recess appointments to any position that became
vacant prior to the recess and continued to be vacant during the recess, as well as positions that
became vacant during the recess. The second interpretation would allow recess appointments only
to positions that became vacant during the recess. Although this question was a source of
controversy in the early 19th century, Attorneys General and most courts have now long supported
the first, broader interpretation of the phrase.28
In a January 25, 2013, decision, the U.S. Court of Appeals for the D.C. Circuit held that the
second, narrower interpretation is correct.29 The long term impact on recess appointment practice
of this decision was not immediately clear.
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
27 These historical instances and their potential applicability under current practices and conditions are discussed in a
June 8, 2012, Congressional Distribution Memorandum, “Recess Appointments during Short Intervals between
Sessions and Historical Efforts to Prevent Recess Appointments through Congressional Scheduling,” by Henry B.
Hogue and Richard S. Beth. Copies of this memorandum are available to the congressional community from its
authors.
28 For a further discussion of this controversy and a list of related opinions, see CRS Report RL33009, Recess
Appointments: A Legal Overview, by Vivian S. Chu.
29 Noel Canning, 705 F.3d at 507. For more on Noel Canning, see CRS Report RL33009, Recess Appointments: A
Legal Overview, by Vivian S. Chu.
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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.30 When the provision includes a specific time limit for the holdover, such as one
year, the position has also been seen as not vacant.31
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.
A recess appointment expires at the sine die adjournment of the Senate’s “next session.” In
practice, this has meant that a recess appointment could last for almost two years. Where the
President has made a recess appointment between sessions of the same or successive Congresses,
this appointment has expired at the end of the session that next convened. Where he has made the
appointment during an intrasession recess, however, the duration of the appointment has included
the rest of the session in progress plus the full length of the session that followed. At any point in
a year, as a result, by making a recess appointment during an intrasession recess, a President
could fill a position not just for the rest of that year, but until near the end of the following year.32
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, President George W. Bush appointed Charles W. Pickering
to a federal court of appeals judgeship. Several weeks later, during the first recess of the second
session, President Bush appointed William H. Pryor to a judgeship on another federal court of
appeals. Pickering’s appointment expired after less than 11 months, at the end of the second
session. Pryor’s recess appointment would have expired after approximately 22 months, at the
end of the first session of the 109th Congress.33 Although the Pickering and Pryor recess
appointments were only several weeks apart, Pryor could have served nearly twice as long
because his appointment was made during an intrasession recess.
Must a Recess Appointee Be Nominated to the Position as Well?
The Constitution does not require that the President submit a nomination of a recess appointee or
anyone else to the appointed position, though he may do so. Alternatively, the President
30 Compare Staebler v. Carter, 464 F. Supp. 585 (1979), with Wilkinson v. L.S.C., 865 F. Supp. 891 (1994).
31 See Mackie v. Clinton.
32 As discussed under “What is a ‘Recess’?” above, recent decisions by the U.S. Courts of Appeals for the D.C. Circuit
and the Third Circuit held that recess appointments may be made only during intersession recesses. Under such
practice, the maximum duration of a recess appointment would depend on the date of the Senate’s sine die adjournment
in two successive sessions. For example, if the Senate were to adjourn sine die on August 1 at the end of the first
session and on December 30 at the end of the following session, a recess appointment made during the intersession
between the two could last as long as approximately 17 months. The long term impact on recess appointment practice
of these decisions was not immediately clear, however.
33 Pryor was subsequently confirmed by the Senate and appointed to the position permanently.
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sometimes will use a recess appointment to fill a position while a different nominee to the same
position is going through the Senate confirmation process. Under certain conditions, a provision
of law may prevent a recess appointee from being paid from the Treasury if the President has not
submitted a nomination to the position. (See below, “Are There any Legal Constraints on the
President’s Recess Appointment Power?”)
What Is the Difference Between the Authority and Pay of a
Confirmed Appointee and Those of a Recess Appointee?
A confirmed appointee and a recess appointee have the same legal authority and receive the same
rate of pay. However, two provisions of law may, under certain circumstances, prevent a recess
appointee from being paid. (See below, “Are There any Legal Constraints on the President’s
Recess Appointment Power?”)
Are There any Legal Constraints on the President’s Recess
Appointment Power?
There is no qualification on the President’s “Power to fill up all Vacancies” in the constitutional
provision. Neither is there a statutory constraint on this power. There are, however, several
provisions of law that may prevent a recess appointee from being paid, and this could discourage
the President from making a recess appointment under certain circumstances. Under 5 U.S.C.
§5503(a), if the position to which the President makes a recess appointment became vacant while
the Senate was in session, the recess appointee may not be paid from the Treasury until he or she
is confirmed by the Senate. The salary prohibition does not apply if (1) the vacancy arose within
30 days of the end of the session; (2) a nomination for the office (other than the nomination of
someone given a recess appointment during the preceding recess) was pending when the Senate
recessed; or (3) a nomination was rejected within 30 days of the end of the session and another
individual was given the recess appointment. A recess appointment falling under any one of these
three exceptions must be followed by a nomination to the position not later than 40 days after the
beginning of the next session of the Senate.34 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 a recess appointee whose nomination to a full term is subsequently rejected
by the Senate may continue to serve until the end of the recess appointment, a provision routinely
included in an appropriations act may prevent him or her from being paid after the rejection. (See
below, “What Happens If the Nomination of a Recess Appointee Is Rejected?”)
Lastly, an individual serving under a recess appointment might not be paid for his or her services
if he or she has been nominated to the position twice and the second nomination has been
34 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
discussion of potential constitutional issues related to statutory pay restrictions for recess appointees, see “Do Pay
Restrictions Raise Constitutional Concerns” in CRS Report RL33009, Recess Appointments: A Legal Overview, by
Vivian S. Chu.
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withdrawn or returned. A provision of the FY2009 Financial Services and General Government
Appropriations Act states,
Effective January 20, 2009, and for each fiscal year thereafter, no part of any appropriation
contained in this or any other Act may be used for the payment of services to any individual
carrying out the responsibilities of any position requiring Senate advice and consent in an
acting or temporary capacity after the second submission of a nomination for that individual
to that position has been withdrawn or returned to the President.35
Although 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.”36
What Happens If the Nomination of a Recess Appointee Is
Rejected?
Rejection by the Senate does not end the recess appointment. However, a provision of the
FY2008 Financial Services and General Government Appropriations Act might prevent an
appointee from being paid after his or her rejection. The provision reads, “Hereafter, no part of
any appropriation contained in this or any other Act shall be paid to any person for the filling of
any position for which he or she has been nominated after the Senate has voted not to approve the
nomination of said person.”37 Similar provisions had been included in annual funding measures
for most of, if not all of, the prior 50 years. As a practical matter, nominations are rarely rejected
by a vote of the full Senate.
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. As discussed above, this statute provides that 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. Of the three exemptions to this
pay prohibition, the first and third would not apply here. The second exemption, however,
provides that, “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.38 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 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
35 P.L. 111-8, Div. D, Title VII, §749; 123 Stat. 693; 5 U.S.C. prec. §5501.
36 For more on designations under the Vacancies Reform Act, see CRS Report RS21412, Temporarily Filling
Presidentially Appointed, Senate-Confirmed Positions, by Henry B. Hogue.
37 P.L. 110-161, Div. D, §709; 121 Stat. 2021.
38 5 U.S.C. §5503(a)(2).
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successive recess appointees.”39 While this provision implicitly bars payments to successive
recess appointees, however, some legal interpretations have suggested that the prohibition does
not apply to all successive recess appointments. Under such interpretations, “if someone other
than a prior recess appointee whose nomination was pending at the time of adjournment is
appointed, § 5503(a)(2) does not bar payment.”40
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 25
years, there have been only three recess appointments to fill Article III judgeships:
• President William J. Clinton recess appointed Roger L. Gregory to the U.S. Court
of Appeals for the Fourth Circuit on December 27, 2000, a step that met some
opposition in the Senate. Ultimately, Gregory was renominated by President
George W. Bush and confirmed by the Senate.
• On January 16, 2004, President Bush recess appointed Charles W. Pickering to
the U.S. Court of Appeals for the Fifth Circuit. Pickering’s appointment expired
at the end of the second session of the 108th Congress, and he retired.41
• On February 20, 2004, President Bush named William H. Pryor to the U.S. Court
of Appeals for the Eleventh Circuit. Pryor was subsequently confirmed by the
Senate.42
Can Congress Prevent Recess Appointments?
From the 110th Congress onward, new scheduling practices have arisen that appear intended to
prevent the President from making recess appointments. One set of practices was implemented by
the Senate alone; no unusual action or inaction by the House was necessary. A second, related set
of practices, which developed in the 112th Congress, arose from the lack of a concurrent
resolution of adjournment, which can result from a lack of consent by either the House or the
Senate. As discussed below, these practices appear not to have prevented recess appointments by
President Obama.
As previously discussed, 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, the Department of Justice, through Attorneys General
and Office of Legal Counsel opinions, has expressed differing views on this issue, and no settled
understanding on this question appears to exist. In 1993, however, a brief submitted by the
Department of Justice in the case Mackie v. Clinton implied that the President may make a recess
39 15 Op. O.L.C. 93 (1991). See also 6 Op. O.L.C. 585 (1982); 41 Op. A.G. 463 (1960).
40 6 Op. O.L.C. 585, 586 (1982) (emphasis added). See also “Modern Statutory Pay Restriction (5 U.S.C. §5503)” in
CRS Report RL33009, Recess Appointments: A Legal Overview, by Vivian S. Chu.
41 Adam Liptak, “Judge Appointed by Bush After Impasse in Senate Retires,” New York Times, December 10, 2004, p.
A20.
42 For more, see CRS Report RL32971, Judicial Recess Appointments: A Legal Overview, by T. J. Halstead.
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appointment during a recess of more than three days.43 (See above, “How Long Must the Senate
Be in Recess Before a President May Make a Recess Appointment?”)
I. Practices Implemented Unilaterally by the Senate
The logic of the argument laid out in the Justice Department brief appears to underlie the
congressional practices that were first implemented during the 110th Congress.44 From November
2007 through the end of the George W. Bush presidency, the Senate structured its recesses in a
way that was intended, at least initially, to prevent the President from making recess
appointments. The approach involved the use of pro forma sessions, which are, as noted above,
short meetings of the Senate or the House held for the purpose of avoiding a recess of more than
three days and therefore the necessity of obtaining the consent of the other House. Normally, it is
understood that during a pro forma session no business will be conducted.45
On November 16, 2007, the Senate majority leader announced that the Senate would “be coming
in for pro forma sessions during the Thanksgiving holiday to prevent recess appointments.”46 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. During the remainder of 2007 and 2008, similar procedures were followed
during most other periods that would otherwise have been Senate recesses of a week or longer in
duration.47
The Senate pro forma session practice appeared to achieve its stated intent through the end of the
Bush presidency: President Bush made no recess appointments between the initial pro forma
sessions in November 2007 and the time he left office.
43 Department of Justice Brief, at 24-26.
44 It appears that this practice was considered, but not implemented, during the 1980s and 1990s. In response to certain
recess appointments by President William J. Clinton in 1999, one Republican Senator reportedly stated, “‘What we can
do—if they’re appointments that he should not make—is just not go into recess .... We’ll just go into pro forma. You’re
in session, theoretically, but there’s no votes’” (Dave Boyer, “Clinton Warned Against Recess Appointments; GOP
Senators May Not Adjourn,” Washington Times, November 5, 1999, p. A1). In remarks on the Senate floor, the Senator
indicated that a threat of this practice had been part of recess appointment negotiations in 1985 between Senator Robert
C. Byrd and President Ronald W. Reagan: “He [Byrd] extracted from him [Reagan] a commitment in writing that he
would not make recess appointments and, if it should become necessary because of extraordinary circumstances to
make recess appointments, that he would have to give the list to the majority leader ... in sufficient time in advance that
they could prepare for it either by agreeing in advance to the confirmation of that appointment or by not going into
recess and staying in pro forma so the recess appointments could not take place” (Senator James M. Inhofe, “Recess
Appointments,” remarks in the Senate, Congressional Record, vol. 145, part 163 (November 17, 1999), p. 29915).
45 As previously noted, business has sometimes been conducted during pro forma sessions, however. For example, by
unanimous consent, the Senate agreed, on December 17, 2011, that it would “adjourn and convene for pro forma
sessions only, with no business conducted” on a number of dates in December 2011 and January 2012, including
December 23, 2011 (Sen. Ron Wyden, “Orders for Tuesday, December 20, 2011 through Monday, January 23, 2012,”
remarks in the Senate, Congressional Record, vol. 157, part 195 (December 17, 2011), pp. S8783-S8784.). On
December 23, 2011, during the period under discussion here, the Senate convened as scheduled and, by unanimous
consent, agreed to a process for passage of the Temporary Payroll Tax Cut Continuation Act of 2011 (Sen. Harry Reid,
“Unanimous Consent Agreement” remarks in the Senate, Congressional Record, daily edition, vol. 157 (December 23,
2011), p. S8789).
46 Sen. Harry Reid, “Recess Appointments,” remarks in the Senate, Congressional Record, daily edition, vol. 153
(November 16, 2007), p. S14609.
47 For further information on the use of the practice during the Bush Administration, see CRS Report RL33310, Recess
Appointments Made by President George W. Bush, by Henry B. Hogue and Maureen Bearden.
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These procedures were not used during the first session of the 111th Congress, but were again
employed during the latter part of the second session; the Senate structured its 2010 pre-election
break as a series of shorter recesses separated by pro forma sessions. President Obama made no
recess appointments during this period.
The procedures used by the Senate during the 110th Congress supplemented the adjournment
procedures typically used by the House and Senate. In each of the instances where the pro forma
session practice was used during the 110th Congress, the two chambers also adopted a concurrent
resolution of adjournment. In each case, the schedule of pro forma sessions was established in the
Senate by unanimous consent within the terms provided for in the concurrent resolution.48
II. Senate Practices Necessitated by the Absence of House Consent to Adjourn
During the first few months of the 112th Congress, the House and Senate passed concurrent
resolutions of adjournment prior to periods of absence of more than three days. Throughout this
period, the Senate did not use the pro forma session practice during the resulting recesses.
During the middle of the first session of the 112th Congress, a new related practice appeared to
emerge. On May 25, 2011, in a letter to Speaker of the House John Boehner, 20 Senators urged
him “to refuse to pass any resolution to allow the Senate to recess or adjourn for more than three
days for the remainder of the president’s term.”49 The letter stated that “President Obama has used
recess appointments to fill powerful positions with individuals whose views are so outside the
mainstream that they cannot be confirmed by the Senate of the United States,” and it referred to
the Senate practices of 2007 as “a successful attempt to thwart President Bush’s recess
appointment powers.” The request of the Senators appeared similarly intended to block President
Obama from using the recess appointment power.
In a June 15, 2011, letter to the Speaker of the House, the House majority leader, and the House
majority whip, 78 Representatives requested that “all appropriate measures be taken to prevent
any and all recess appointments by preventing the Senate from officially recessing for the
remainder of the 112th Congress.”50
Between May 12, 2011, and the end of that year, no concurrent resolution of adjournment was
introduced in either chamber. During periods of extended absence, the Senate used pro forma
sessions to avoid recesses of more than three days.51
48 For example, H.Con.Res. 259 (110th Congress) provided that, “when the Senate recesses or adjourns on any day from
Thursday, November 15, 2007, through Thursday, November 29, 2007, on a motion offered pursuant to this concurrent
resolution by its Majority Leader or his designee, it stand recessed or adjourned until noon on Monday, December 3,
2007, or such other time on that day as may be specified by its Majority Leader or his designee in the motion to recess
or adjourn ....” The series of pro forma sessions established by the Senate prior to its period of absence around this time
concluded with a pro forma session on November 29, 2007, the last date upon which the Senate could adjourn under
the resolution.
49 U.S. Congress, Senate, Senator David Vitter, “Vitter, DeMint Urge House to Block Controversial Recess
Appointments,” press release, May 25, 2011, available at http://vitter.senate.gov/public/index.cfm?FuseAction=
PressRoom.PressReleases&ContentRecord_id=290b81a7-802a-23ad-4359-6d2436e2eb77&Region_id=&Issue_id=.
50 U.S. Congress, House, Representative Jeff Landry, letter to the Speaker of the House John Boehner, et al., June 15,
2011, available at http://landry.house.gov/sites/landry.house.gov/files/documents/
Freshmen%20Recess%20Appointment%20Letter.pdf
51 The House has also used pro forma sessions during such periods of extended absence.
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III. Appointments During a Three-day Recess Between Two Pro Forma
Sessions
On January 4, 2012, during a three-day recess between pro forma sessions of the Senate on
January 3 and January 6, 2012, the White House announced President Obama’s intent to make
four recess appointments—three to seats on the National Labor Relations Board (NLRB) and one
to be Director of the Consumer Financial Protection Bureau. The recess and pro forma sessions
had been provided for as part of the Senate schedule for the period of December 20, 2011,
through January 23, 2012, established by unanimous consent on December 17, 2011.52 This
schedule, similar to those agreed to before extended Senate breaks in earlier months, provided for
a series of pro forma sessions with intervening three- and four-day recesses.
Under the requirements of Section 2 of the Twentieth Amendment to the Constitution as well as
the provisions of the Senate schedule agreed to on December 17, 2011, the second session of the
Senate of the 112th Congress convened on January 3, 2012. President Obama’s January 4, 2012,
recess appointments, occurring during the first adjournment following the beginning of the
session, would be considered intrasession recess appointments.
As discussed above, a Justice Department legal opinion and two federal appeals court decisions
related to these four recess appointments by President Obama addressed the constitutionality of
the President’s actions. The Justice Department argued that the recess appointments were
constitutional, 53 while the two appellate courts each found that the three recess appointments to
the NLRB, which were the focus of the respective cases, were not constitutional. 54 The long term
impact on recess appointment practice of the Justice Department opinion and the appeals court
decisions was not immediately clear.55
Author Contact Information
Henry B. Hogue
Specialist in American National Government
hhogue@crs.loc.gov, 7-0642
52 Sen. Ron Wyden, “Orders for Tuesday, December 20, 2011 through Monday, January 23, 2012,” remarks in the
Senate, Congressional Record, vol. 157, part 195 (December 17, 2011), pp. S8783-S8784.
53 “Lawfulness of Recess Appointments during a Recess of the Senate notwithstanding Periodic Pro Forma Sessions,”
Memorandum Opinion for the Counsel to the President, January 6, 2012, available at http://www.justice.gov/olc/2012/
pro-forma-sessions-opinion.pdf.
54 Noel Canning and National Labor Relations Board v. New Vista Nursing and Rehabilitation, No. 11-3440, 2013 WL
2099742, at *1 (3d Cir. May 16, 2013). For more on Noel Canning, see CRS Report R43030, The Recess Appointment
Power After Noel Canning v. NLRB: Constitutional Implications, by Todd Garvey and David H. Carpenter. For more
on New Vista Nursing and Rehabilitation, see CRS Report WSLG521, 3rd Circuit: President’s Recess Appointment
Power Only Extends to Intersession Recesses, by David H. Carpenter.
55 For more on the impact of the first appeals court decision, see CRS Report R43032, Practical Implications of Noel
Canning on the NLRB and CFPB, by David H. Carpenter and Todd Garvey.
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