Constitution Daily

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Constitution Check: What are the limits on the president’s appointment powers?

January 28, 2013 by Lyle Denniston


Lyle Denniston looks at Friday’s appeals court decision over presidential recess appointments and why the case could be headed to the Supreme Court.

The statements at issue:

“The Framers of the Constitution feared the history of tyranny that arose from executive power.  The Constitution provides for presidential nomination and Senate confirmation of appointees for this reason.  The limited exception of recess appointments is a victory for freedom and a lesson to the President to respect legal constraints on his expansive claims for executive power.”

– Senator Charles Grassley, Republican of Iowa and a member of the Senate Judiciary Committee, statement to the press on January 25, reacting to a federal appeals court decision sharply limiting presidential authority to fill vacancies at federal government agencies.


“Hundreds of decisions by the National Labor Relations Board could be invalidated and the entire agency effectively shut down.”

– The Alliance for Justice, a Washington-based, liberal advocacy group, in a press release January 25 commenting on the same court ruling.

We checked the Constitution, and…

In this age of partisan gridlock in Washington, not many constitutional controversies have more severely tested the core powers of government than disputes over presidential appointments.   The maneuvering, producing frustration on both ends of Pennsylvania Avenue --  the White House and the Senate, has been especially tense in the past two years.  It has produced some basic rethinking of just what the Constitution means about the separation of powers between those branches.

Now, a federal appeals court, invoking the power of the judiciary “to say what the law is,” has stepped in.  And the result was a major shift of constitutional authority from the White House to the Senate, and especially to the Senate’s Republican minority.   That is what led Senator Grassley to proclaim victory, and the Alliance for Justice to see dire consequences.

The Senate’s GOP leaders, believing that there is too much government regulation of business, have made two federal agencies special targets of their complaint: the National Labor Relations Board, and the Consumer Financial Protection Bureau.   The most successful tactic had been to try to keep those agencies from getting new leadership, in hopes that they would simply not be able to function.  GOP senators, lacking majority control, used the powers of the Senate filibuster to help prevent confirmation of new members of the NLRB and – twice -- a new head of the consumer agency that had been created by the new financial regulation law.

President Obama, in response, took advantage of a time when the Senate was out of town, in early January last year, and named three new members of the NLRB and a new consumer agency director, Richard Cordray.   The president did so using the power, given by the Constitution, to make appointments during Senate recesses.  If the Senate will not confirm nominees to those posts, the president and his aides said, it is the president’s obligation to make sure that those agencies can continue to operate, so he chose to give temporary assignments.   The NLRB has to have five members in order to do anything, and it had only two.  The consumer bureau could not function with nobody at the top.

Senate Republicans cried foul, claiming the president had made an unconstitutional power grab.  The president also cried foul, saying the Senate could not take away his appointment power by denying confirmation and then manipulating recesses to thwart temporary appointments.

The result, of course, was a constitutional clash of historic proportions.  And, inevitably, it produced a rash of lawsuits around the country to test who had the better of the constitutional argument.   The first appeals court decision emerged last week, and the Senate’s constitutional powers over appointments was the obvious winner.

The U.S. Court of Appeals for the District of Columbia drew two conclusions from the Constitution’s grant of presidential power to make appointments during congressional recesses.  First, it ruled that the power only exists when the Senate has taken a formal recess, either at the end of a two-year Congress, or at the end of the first of the biennial sessions of Congress.  And, second, it ruled that the president can only fill temporarily a government post that actually becomes vacant during such a recess.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

What that probably means, in practical terms, is that if a government position subject to the process of presidential appointment and Senate review becomes vacant at any time while Congress is in session, the president can only use the usual process: propose a nominee, and hope for the best in the Senate.   The president, the court stressed, cannot use the next time the Senate is out of town to fill such a position.

The background of recess appointments by presidents has two very distinct histories.  In the early years of the Constitution, presidents did not use that power very often, and did so only when it was very clear that the Senate could not assemble to perform its usual “advice and consent” function, so the president had to act.  For most of the past century or more, however, presidents have made regular use of the recess appointment power, at least when the Senate was out of session for more than just a few days.

The D.C. Circuit Court, in a decision that fully embraces the notion that the best way to interpret the Constitution is to understand what it meant in the early years and especially at the founding, ruled that the recess clause has a very limited and precise meaning, and is not open to the flexible interpretation that modern presidents had assumed it had.

The Obama Administration has the option of asking the full Circuit Court to review this decision, which came from a three-judge panel, or of taking the case – now or later – to the Supreme Court.   Because lower courts are split on the issue, the issue ultimately seems likely to go to the Supreme Court for a final reckoning.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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