Recess appointment

According to Henry B. Hogue, of the Congressional Research Service's Government and Finance Division:[16]

Recent Presidents have made both intersession (between sessions or Congresses) and intrasession (during a recess within a session) recess appointments. Intrasession recess appointments were unusual, however, prior to the 1940s. Intrasession recess appointments have sometimes provoked controversy in the Senate, and there is also an academic literature that has drawn their legitimacy into question.

It has been argued that as the clause was originally understood, it was expected that if the Senate was in session when an office became vacant, the president would make a standard advice-and-consent appointment at that time.[17] In Federalist No. 67, Alexander Hamilton wrote:[18]

The ordinary power of appointment is confined 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. ...

Another argument maintains that recess appointments were to be made only during inter-session recesses, which during the early days of the country lasted between six and nine months, and were therefore required to prevent important offices from remaining unfilled for long periods. The view holds that the current interpretation allows appointments to be made during recesses too brief to justify bypassing the Senate.

Historically, presidents tended to make recess appointments when the Senate was adjourned for lengthy periods. Since World War II, presidents have sometimes made recess appointments when Senate opposition appeared strong in the hope that appointees might prove themselves in office and then allow opposition to dissipate. Most recently, however, as partisanship on Capitol Hill has grown,[19] recess appointments have tended to solidify opposition to the appointee.[20]

Regardless of the Senate continuing to hold pro forma sessions, on January 4, 2012, President Obama appointed Richard Cordray and others as recess appointments.[21][22][23] White House Counsel Kathryn Ruemmler asserted that the appointments were valid, because the pro forma sessions were designed to, "through form, render a constitutional power of the executive obsolete" and that the Senate was for all intents and purposes recessed.[24] Republicans in the Senate disputed the appointments, with Senate Minority Leader Mitch McConnell stating that Obama had "arrogantly circumvented the American people" with the appointments. It was expected that there would be a legal challenge to the appointments.[25]

On January 6, 2012, the Department of Justice Office of Legal Counsel issued an opinion regarding recess appointments and pro forma sessions, claiming,

"The convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a "Recess of the Senate" under the Recess Appointments Clause. In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments".[26][27]

However, this was widely disputed.[28][29] The first such challenge was announced in April 2012, disputing a National Labor Relations Board ruling made following the Obama appointments.[30][31]

On January 25, 2013, in the first circuit case to rule on the validity of the January 4, 2012, appointments, Chief Judge David Sentelle, writing for a unanimous three-judge panel for the U.S. Court of Appeals for the D.C. Circuit, wrote

"an interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."[32]

On June 26, 2014, in a 9–0 ruling, the United States Supreme Court validated this practice of using pro forma sessions to block the president from using the recess appointment authority. Justice Breyer also wrote in NLRB v. Noel Canning that the President could force a recess if he had enough congressional support:

"The Constitution also gives the President (if he has enough allies in Congress) a way to force a recess. Art. II, §3 ('[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper'). Moreover, the President and Senators engage with each other in many different ways [*28] and have a variety of methods of encouraging each other to accept their points of view. Regardless, the Recess Appointments Clause is not designed to overcome serious institutional friction. It simply provides a subsidiary method for appointing officials when the Senate is away during a recess."[33]

On July 16, 2013, the U.S. Senate confirmed Cordray to a five-year term as Director.[34]

Prior to National Labor Relations Board v. Noel Canning, there was a split among the circuit courts on the validity of intra-session appointments and on what vacancies can be filled using the Recess Appointment authority. Following the 2003 intra-session appointment of William H. Pryor, Jr., to the U.S. Court of Appeals for the Eleventh Circuit, a small number of criminal defendants, whose appeals were denied by panels including Pryor, appealed on the basis that Pryor's appointment was invalid. The Eleventh Circuit, in an en banc decision in Evans v. Stephens[35][36] held that the Constitution permitted both intra-session recess appointments and recess appointments to fill vacancies that "happened" prior to rather than during the congressional recess.

However, NLRB v. Noel Canning, Circuit docket 12-1115 in the Court of Appeals for the District of Columbia Circuit, appealed a decision made by National Labor Relations Board (NLRB) members appointed, in what President Obama determined was an intra-session recess was decided in a three-member panel decision on January 25, 2013, that intra-session appointments were unconstitutional because the word "the" before the word "Recess" in the Constitution was determined to mean to limit it to only the inter-session recess, and it further limited the power by limiting it to only those vacancies that "happen" to occur during the inter-session break, not to vacancies that existed prior to the recess.[32] Also, on March 16, 2013, the Third Circuit joined the D.C. Circuit and held that the March 2010 appointment of Craig Becker to the NLRB was invalid because he was not appointed between sessions.[37]

On June 26, 2014, the United States Supreme Court rejected both holdings,[38] while also unanimously deciding that President Obama overreached his authority in appointing members to the NLRB while the Senate was still formally in session.[39] Justice Stephen Breyer, in the majority opinion, wrote that the Constitution allows for the Congress itself to determine its sessions and recesses, that "the Senate is in session when it says it is", and that the President does not have the unilateral right to dictate Congressional sessions and thus make recess appointments.[39] However, the decision allows the use of recess appointments during breaks within a session for vacancies that existed prior to the break.