The Recess Appointments Clause – Constitution Article 2 §2.3

On Wednesdays we study the Constitution. Most recently, I spent two weeks teasing apart Article 2 §2.2, which gives the president treaty and appointment powers. This post is publishing in mid-December, but I am writing it on the day before Thanksgiving, and let me tell you, I am truly grateful that Article 2 §2.3 looks like a much simpler clause to dissect. Article 2 §2.3 grants the president power to fill vacancies.

Article 2 §2.3

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.

Well this just seems like a special case of the appointment power. While there is always more to the story with this Constitution, this clause only merits 4 pages in the Annotated Constitution compared to the 100-ish pages of the last clause. I am so grateful.

The clause was evidently intended to enable the President to keep the government running smoothly when the Senate was not in session. (You know, to avoid the “wait till your Senate gets home” situation.) But of course, presidents have also used the Recess Appointments Clause to appoint officials they thought the Senate wouldn’t confirm.

So, let’s see what textual issues relate to the Recess Appointments Clause.

Textual Issues

that may happen

If a vacancy occurs while the Senate is on recess, this clause obviously applies. But what if a vacancy occurs during session, and the Senate fails to confirm an appointment before leaving on recess? Common sense would say, yes, it applies. If the Senate doesn’t care about an appointment enough to take action before leaving for the season, they forfeit their say. And if the purpose of the clause is to keep things running rather than putting action on hold for months at a time, then a vacancy that lasts longer than a Senate recess should be avoided.

during the Recess of the Senate

The Senate takes a recess between sessions and can also recess during a session. Can the president fill a vacancy during an intrasession recess? Common sense would say no. Waiting until Monday to fill a vacancy would not impede the operation of government.

Neither of these issues were legally addressed until National Labor Relations Board v. Noel Canning in 2014. The court found there was no legal basis for a decision – the Constitution just doesn’t answer the question. Based on a combination of practicality and past precedent, the court ruled that the Recess Appointments Clause applies regardless of whether the Senate was at recess when the vacancy arose. It also applies during both intersession and intrasession recesses but should not be used for short recesses of oh, say, 10 days or less.

Judges

Judges are kind of problematic in relation to recess appointments. A normally appointed judge can only be removed through impeachment; a recess judge may be “removed” by the Senate’s failure to consent to his appointment. In the interim between appointment and confirmation, a judge could be “subject to influence.”

Interim Appointments

Usually, government agencies establish chains of succession in case one officer becomes incapacitated or steps down. Governments like back up plans. But when there is no predetermined replacement, the president can designate an interim replacement. The Constitution doesn’t really address this situation, but the courts have generally agreed that the practice is consistent with the intent of the clauses in Section 2.2 and 2.3.