Constitution Daily

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How recess (appointments) became a little less fun

February 1, 2013 by Amy E. Feldman


If you ask any kid on the playground to define “recess,” she’ll probably tell you that it’s the best time of the day. And for some presidents, recess has been met with as much relish. But that sentiment may now be in doubt, at least as far as presidents go. Because the definition of recess, it turns out, isn’t so clear.

Image via Wikimedia Commons.
Image via Wikimedia Commons.

No one needs to explain why a lunchtime recess at school is great. But as for what makes it great for the president, you’ll need to know a little background.

Article II, Section 2 of the Constitution grants the president power to nominate individuals to certain high-level positions in the federal government—but each nominee must be approved by two-thirds of the Senate.

There are about a thousand positions in the administration for which Senate confirmation is required, including all of the 15 Cabinet members who head executive departments, the heads of regulatory agencies (like the Environmental Protection Agency), ambassadors, Supreme Court justices and other federal judges, U.S. attorneys, U.S. marshals, deputy secretaries, undersecretaries, and assistant secretaries.

That’s a lot of people for the Senate to confirm. In addition to the sheer quantity, in the past few decades the Senate confirmation process has become increasingly contentious, with even lower-level nominations struggling through prolonged partisan battles.

But here’s why recess period is so much fun for the president, even if there is no swing set involved: Article II, Section 3 of the Constitution says 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.”

That means that the president doesn’t need to get Senate confirmation if he nominates someone when the Senate is recessed.

The tricky part is how to define a Senate recess. That’s what a recent federal court ruled on in a case about a handful of recess appointments by President Barack Obama.

In January 2012, President Obama appointed three members of the National Labor Relations Board when the Congress was on extended break for the winter holidays. Fearing that the president would attempt to make recess appointments, Republicans banged the gavel and officially opened a session for a few minutes every three days. The president argued that these sessions were simply a sham to cover what was actually a recess.

These sessions, which are called “pro forma sessions” (from Latin, meaning “as a matter of form”), are a recent development. They are typically brief, often lasting mere minutes and consisting of only a few senators or representatives, and held simply to avoid a recess and thus prevent any presidential recess appointments.

On January 25, a three-judge panel of the Circuit Court of Appeals for the District of Columbia was asked to consider the matter of whether the appointment of the three National Labor Relations Board was, in fact, a recess appointment and therefore not in need of Senate confirmation. The panel unanimously decided that the president did not have constitutional authority to make those appointments without confirmation. The court further stated, “Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception.”

As you can imagine, the president strongly disagrees with the decision. White House press secretary Jay Carney said of the decision, “The decision is novel and unprecedented. … It contradicts 150 years of practice by Democratic and Republican administrations."

The case will likely go to the United States Supreme Court. If you were the court, how would you define a “recess” by the Senate? And what should happen to the decisions made by the three-panel members during the year that they were in their positions while this case played out in court?

This case may not be as much fun as an hour on the monkey bars, but it is certainly a lot of fun for constitutional law lovers to watch unfold.

Amy E. Feldman is the Legal Education Consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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