Understanding the Constitution’s Recess Appointments Clause

November 22, 2024 by Scott Bomboy

President-elect Donald Trump’s recent remarks about using recess appointments to name his cabinet nominees has drawn a good deal of media attention. Under the Constitution, the president does have limited powers to make temporary appointments when the Senate is not in session, and he can adjourn the Senate as well, but under highly restricted circumstances.

On Nov. 10, 2024, Trump commented on social media that “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner.”

Those comments set off a flurry of analysis from academics and other observers. Until President-elect Trump takes the oath of office on Jan. 20, 2025, his call to use recess appointments remains theoretical. But the basic contours of the powers and limitations of recess appointments have been established since a landmark Supreme Court decision in 2014.

The Recess Appointments Clause

The Constitution’s Article II, Section 2, spells out the general powers of a president to make appointments to fill vacancies when the Senate is not available to consider such matters:

“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,” reads the clause.

In the National Constitution Center’s Interactive Constitution, legal scholars John McGinnis and Peter Shane looked at the origins of the Recess Appointments Clause and how the Supreme Court’s 2014 decision in National Labor Relations Board v. Noel Canning explained a president’s options:

“The Recess Appointments Clause was included in Article II in the apparent anticipation that government must operate year-round, but Congress would typically be away from the capital for months at a time,” they explained. Over the ensuing decades—and extending to modern times when Congress itself sits nearly year-round—the somewhat awkward wording of the Clause seemed to pose two issues that the Supreme Court decided for the first time in 2014.”

“First, does the power of recess appointments extend to vacancies that initially occurred while the Senate was not in recess? Second, may a period of Senate adjournment trigger the president’s recess appointment power even if that period of adjournment occurs during a Senate session, rather than between the adjournment of one session sine die and the convening of the next?” McGinnis and Shane asked.

The Supreme Court on Recess Appointments

The Noel Canning case involved a challenge to a ruling issued by the National Labor Relations Board because two of the board’s administrative law judges had been appointed by then-President Barack Obama without receiving Senate confirmation. Obama made the appointments while the Senate was adjourned but was still meeting in “pro forma” sessions every three days. In a unanimous decision written by Justice Stephen Breyer, the Supreme Court ruled that if a recess—whether inter or intra-session— lasts 10 days or longer, a president can make recess appointments, including for vacancies that happened while the Senate was in session. The person appointed by the president would serve in office through the end of the next annual session.

An intrasession recess is a break taken by Senators during the annual January-to-December session of Congress, such as the traditional August break. In comparison, an “intersession recess” is the brief break between two annual sessions of Congress.

However, the court clarified that “[i]f a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause . . . And a recess lasting less than 10 days is presumptively too short as well.”

In a concurring opinion, Justice Antonin Scalia agreed with the decision’s outcome, but he thought that the ruling was too broad of an interpretation of the clause.

For example, he disagreed with the majority in allowing the president to make any recess appointments during an intrasession recess. “The Court’s contrary conclusion—that “the Recess” includes “breaks in the midst of a session,” is inconsistent with the Constitution’s text and structure, and it requires judicial fabrication of vague, unadministrable limits on the recess-appointment power (thus defined) that overstep the judicial role,” Scalia concluded.

Scalia also felt that the decision left too much up to the Senate to enforce limitations on the power: “The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments. Henceforth, the Senate can avoid triggering the president’s now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted,” Scalia said. “How this new regime will work in practice remains to be seen.”

The three justices who signed on to Scalia’s opinion were Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito.

The President’s Power to Adjourn Congress

Under Article II, Section 3 of the Constitution, the president does have the power to call for an adjournment of Congress under narrow circumstances. The clause in part reads that the president “may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.” So far, the president has never exercised the power to adjourn Congress when the House and Senate cannot agree on a time to adjourn.

This section is linked to the Adjournments Clause in Article I, Section 5, which states that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”

In Noel Canning, Breyer acknowledged the possibility of a presidentially triggered recess. “The Constitution also gives the president (if he has enough allies in Congress) a way to force a recess,” he said, pointing to Article II, Section 3. “Moreover, the president and senators engage with each other in many different ways and have a variety of methods of encouraging each other to accept their points of view.”

The Library of Congress has noted that the founders intended the Adjournments Clause as an element of separation of powers. to give legislative leaders a strong incentive to cooperate rather than surrender their adjournment powers to the president, the Library of Congress concluded.

However, the clause also limits presidential power to adjourn the legislature in this regard. This point was spelled out by Justice Joseph Story in his Commentaries on the Constitution of the United States. Story recalled that under the British constitutional system, the king could call for a legislative recess at any time or call for a new legislature. Under the colonial governments, “the undue exercise of the same power by the royal governors constituted a great public grievance and was one of the numerous cases of misrule upon which the Declaration of Independence strenuously relied,” Story said.

Scott Bomboy is the editor in chief of the National Constitution Center.