View source for Recess appointment

{{short description|Appointment by the president of a federal official when the U.S. Senate is in recess}}
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In the [[United States]], a '''recess appointment''' is an appointment by the [[President of the United States|president]] of a [[Officer of the United States|federal official]] when the [[United States Senate|U.S. Senate]] is in [[Recess (motion)|recess]]. Under the [[Constitution of the United States|U.S. Constitution]]'s [[Appointments Clause]], the president is empowered to nominate, and with the [[advice and consent]] (confirmation) of the Senate, make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions, as well as to the [[Federal judiciary of the United States|federal judiciary]]. A recess appointment under [[Article II, Section 2, Clause 3]] of the Constitution is an alternative method of appointing officials that allows the temporary filling of offices during periods when the Senate is not in session. It was anticipated that the Senate would be away for months at a time, so the ability to fill vacancies in important positions when the Senate is in recess and unavailable to provide advice and consent was deemed essential to maintain government function, as described by [[Alexander Hamilton]] in [[Federalist No. 67|No. 67]] of ''[[The Federalist Papers]]''.

In modern times, the Senate is in session nearly year-round, making the recess appointment mechanism far less necessary or useful for upkeep of government function. Nonetheless, in recent times this power has also been controversially used as a political tool to temporarily install an unpopular nominee by sidestepping the Senate's role in the confirmation process;<ref name=CRS-Hogue>{{cite web| last=Hogue| first=Henry B.| title=Recess Appointments: Frequently Asked Questions| date=March 11, 2015| url=https://www.senate.gov/CRSpubs/3d313cc2-9515-4533-b1f0-3f762cd09007.pdf| work=CRS Reports| publisher=[[Congressional Research Service]]| location=Washington, D.C.| access-date=February 10, 2018}}</ref> the Senate has taken measures from time to time to prevent a president from making recess appointments, specifically by holding [[Pro forma session|''pro forma'' sessions]]. The [[Supreme Court of the United States|Supreme Court]] affirmed that ''pro forma'' sessions are sufficient to prevent recess appointments and addressed other intricacies of the practice in ''[[NLRB v. Noel Canning]]'' (2014). Appointments made during a recess must be confirmed by the Senate by the end of the next session of [[United States Congress|Congress]], or the appointment expires. In current practice, this means that a recess appointment must be approved by roughly the end of the next calendar year and thus could last for almost two years, if made early enough in the year. In situations where a recess appointment is prevented, a lower official frequently assumes the duties of the position in an [[acting (law)|acting]] role.

==Constitutional text==
[[Article II, Section 2, Clause 3]], commonly known as the ''Recess Appointment Clause'', provides that,
{{blockquote|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.}}

==History==
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Presidents since [[George Washington]] have made recess appointments. Washington appointed [[South Carolina]] judge [[John Rutledge]] as [[Chief Justice of the United States]] during a congressional recess in 1795. Because of Rutledge's political views and occasional mental illness, however, the Senate rejected his nomination, and Rutledge attempted [[suicide]] and resigned. Almost every president has used recess appointments to appoint judges, over 300 such judicial recess appointments before 2000, including [[List of Justices of the Supreme Court of the United States|ten Supreme Court justices]].<ref>{{Cite journal |last=Arnold |first=Tim |date=Spring 2011 |title=Recess Appointments |url=https://www.law.virginia.edu/static/uvalawyer/html/alumni/uvalawyer/spr11/recess.htm |journal=UVA Lawyer}}{{full citation needed|date=November 2024}}</ref>

[[New Jersey]] judge [[William J. Brennan]] was appointed to the Supreme Court by President [[Dwight D. Eisenhower]] in 1956 by a recess appointment.{{citation needed|date=November 2024}} This was done in part with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern [[Roman Catholic Church|Catholic]] on the court.{{citation needed|date=November 2024}} Brennan was promptly confirmed when the Senate came back into session.{{citation needed|date=November 2024}} Eisenhower, in a recess appointment, also designated [[Charles W. Yost]] as [[United States Ambassador to Syria]].{{citation needed|date=November 2024}}<!--EXAMINE THE FOLLOWING SOURCE AND SEE IF YOU FIND IT ADEQUATE AND FINCTIONING; WE DID NOT.<ref>{{cite web|url=http://www.msg-history.com/detachments/syria/syria_damascus.html|title=Marine Embassy Security Guard historical archives|website=Msg-history.com|access-date=December 10, 2016}}</ref>--> Eisenhower made two other recess appointments, Chief Justice [[Earl Warren]] and Associate Justice [[Potter Stewart]].{{citation needed|date=November 2024}}

As reported by Adam Serwer, writing for [[Mother Jones (magazine)|''Mother Jones'']], the [[Congressional Research Service]] (CRS) tallied<blockquote>President [[Ronald Reagan]] ma[king] 240 recess appointments [during his time in office], [and] President [[George H. W. Bush]] ma[king] 77 recess appointments....<ref name=Serwer2012>{{cite report | author = Serwer, Adam | date = January 4, 2012 | title = Chart of the Day: Presidential Recess Appointments | work = [[Mother Jones (magazine)|Mother Jones]] | url = https://www.motherjones.com/politics/2012/01/chart-day-presidential-recess-appointments/  | access-date = 19 November 2024 | quote = According to reports from the Congressional Research Service, during their time in office President Ronald Reagan made 240 recess appointments, President George H. W. Bush made 77 recess appointments, President Bill Clinton made 140 recess appointments, and George W. Bush made 171. Obama’s first term has seen a paltry 28.}}</ref>{{better source needed|date=November 2024}}</blockquote>

George H. W. Bush appointed [[Lawrence Eagleburger]] as [[United States Secretary of State|Secretary of State]] during a recess in 1992; Eagleburger, as [[United States Deputy Secretary of State|Deputy Secretary of State]], had in effect filled that role after [[James Baker]] resigned.{{citation needed|date=November 2024}}

Henry B. Hogue, a specialist in American national government, summarised the next presidents for the CRS, stating<blockquote>President William J. Clinton made 139 recess appointments [during his presidency], 95 to full-time positions and 44 to part-time positions. President George W. Bush made 171 recess appointments, 99 to full-time positions and 72 to part-time positions.<ref name=Hogue2017>{{cite report | author = Hogue, Henry B. | date = September 7, 2017 | title = Recess Appointments Made by President Barack Obama | work = CRS Report—Prepared for Members of Congress | via = [[Federation of American Scientists]] (FAS) Project on Government Secrecy (SGP.FAS.org) | url = https://sgp.fas.org/crs/misc/R42329.pdf | access-date = 19 November 2024 | number = R42329 | location = Washington, DC | publisher =  Congressional Research Service | quote = }}</ref></blockquote>
<!--President [[Bill Clinton]] made 139 recess appointments (average of 17 per year).{{OR|date=November 2024}}{{fact|date=November 2024}} President [[George W. Bush]] made 171 recess appointments (average of 21 per year).{{OR|date=November 2024}}{{fact|date=November 2024}}-->

During the last two years of the Bush administration, Democratic [[Senate Majority Leader]] [[Harry Reid]] sought to prevent recess appointments.{{citation needed|date=November 2024}} Bush promised not to make any during the August recess that year, but no agreement was reached for the two-week Thanksgiving break in November 2007.{{citation needed|date=November 2024}} As a result, Reid did not allow adjournments of more than three days from then until the end of the Bush presidency by holding ''[[pro forma#United States|pro forma]]'' sessions.{{citation needed|date=November 2024}}<ref>• {{cite web |url=http://thomas.loc.gov/home/ds/s1102.html |title=Days in Session Calendars U.S. Senate – 110th Congress 2nd Session |website=Thomas.loc.gov |date=December 31, 2008 |access-date=May 30, 2011 |archive-date=May 6, 2009 |archive-url=https://web.archive.org/web/20090506095036/http://thomas.loc.gov/home/ds/s1102.html |url-status=dead }}{{primary source inline|date=November 2024}}<br>:• {{cite web |url=http://democrats.senate.gov/calendar/2008-12.html |title=Senate Calendar – December |website=Democrats.senate.gov |access-date=May 30, 2011 |url-status=dead |archive-url=https://web.archive.org/web/20110606164135/http://democrats.senate.gov/calendar/2008-12.html |archive-date=June 6, 2011 }}{{primary source inline|date=November 2024}}</ref>{{primary source inline|date=November 2024}} Prior to this, there had been speculation that [[James W. Holsinger]] would receive a recess appointment as [[Surgeon General of the United States]].<ref>{{cite news |url=https://www.cbsnews.com/news/reid-to-bush-no-recess-appointments-wanted/ |title=Reid To Bush: No Recess Appointments Wanted |website=CBSNews.com |date=November 16, 2007 |access-date=May 30, 2011}}{{full citation needed|date=November 2024}}</ref>

President Barack Obama made 32 recess appointments (through February 1, 2015), all to full-time
positions.<ref name=CRS-Hogue/> Over what would have traditionally been the 2011–12 winter recess of the [[112th United States Congress|112th Congress]], the Republican-controlled [[United States House of Representatives|House of Representatives]] did not assent to recess, specifically to block [[Richard Cordray]]'s appointment as Director of the [[Consumer Financial Protection Bureau]].<ref>{{cite web|url=https://talkingpointsmemo.com/dc/gop-furious-as-obama-recess-appoints-cordray |title=GOP Furious As Obama Recess Appoints Cordray |website=talkingpointsmemo.com |date=January 4, 2012 |access-date=December 10, 2016}}{{full citation needed|date=November 2024}}</ref> Both the House and Senate continued to hold ''pro forma'' sessions.<ref>{{cite news | first=Michael | last=McConnell | date=January 10, 2012 | title=Democrats and Executive Overreach | work=[[The Wall Street Journal]] | format = outside opinion | url=https://www.wsj.com/articles/SB10001424052970204257504577150661990141658 | access-date = 19 November 2024 | quote = Mr. McConnell, a former federal judge, is a professor of law and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution.}}</ref>

In August 2017, nine ''pro forma'' sessions were set up to block President [[Donald Trump]] from making recess appointments; the concern was that Trump might dismiss [[United States Attorney General|Attorney General]] [[Jeff Sessions]], and try to name his successor while Congress was in recess.<ref>{{cite web |title=Senate blocks Trump from making recess appointments over break |date=2017-08-03 |website=[[The Hill (newspaper)|The Hill]] |archive-url=https://web.archive.org/web/20221221155200/https://thehill.com/homenews/senate/345261-senate-blocks-trump-from-making-recess-appointments-over-break/ |archive-date=2022-12-21 |url-status=live |url=https://thehill.com/homenews/senate/345261-senate-blocks-trump-from-making-recess-appointments-over-break/}}{{full citation needed|date=November 2024}}</ref> ''Pro forma'' sessions continued to be held until January 2019: they were held on December 31, 2018,{{citation needed|date=November 2024}}<!--THE FOLLOWING CITATIONS ARE DATED FOUR DAYS PRIOR TO THE TEXT DATE, AND SO THESE SOURCES ARE NOT SUFFICIENT.--><ref>{{cite news|url=https://www.washingtonpost.com/politics/trump-claims-without-evidence-that-most-of-the-people-not-getting-paid-in-partial-government-shutdown-are-democrats/2018/12/27/afbc992a-09cc-11e9-88e3-989a3e456820_story.html|title=Shutdown Set to Extend Into New Year After Congress Punts on Budget, Border Votes|last1=Werner|first1=Erica|last2=Kane|first2=Paul|date=December 27, 2018|newspaper=[[The Washington Post]]|url-status=live|access-date=December 27, 2018|last3=Sonmez|first3=Felicia|archive-url=https://web.archive.org/web/20181227183104/https://www.washingtonpost.com/politics/trump-claims-without-evidence-that-most-of-the-people-not-getting-paid-in-partial-government-shutdown-are-democrats/2018/12/27/afbc992a-09cc-11e9-88e3-989a3e456820_story.html|archive-date=December 27, 2018 }}</ref> and again on January 2, 2019, the last full day of the [[115th United States Congress]], that lasted several minutes.{{citation needed|date=November 2024}}

On April 15, 2020, while Congress was holding ''pro forma'' sessions due to the recess during the [[COVID-19 pandemic in the United States|COVID-19 pandemic]], President Trump threatened to [[Prorogation#United States|adjourn]] both houses of Congress in order to make recess appointments for vacant positions such as the [[Federal Reserve Board of Governors]] and the [[Director of National Intelligence]].<ref>{{Cite web|url=https://thehill.com/homenews/administration/493044-trump-threatens-to-adjourn-both-chambers-of-congress/|title=Trump threatens to adjourn both chambers of Congress|last=Zilbermints|first=Regina|date=2020-04-15|website=[[The Hill (newspaper)|The Hill]]|language=en|access-date=2020-04-19}}</ref> However, the U.S. Constitution only grants the president the authority to adjourn Congress if it is unable to agree on a date of adjournment,{{citation needed|date=November 2024}} and both [[Speaker of the United States House of Representatives|Speaker of the House]] [[Nancy Pelosi]] and [[Party leaders of the United States Senate|Senate Majority Leader]] [[Mitch McConnell]] indicated that they would not alter the planned date of January 3, 2021.<ref>{{Cite web|url=https://www.aljazeera.com/news/2020/04/explainer-trump-authority-adjourn-congress-200416182101206.html|title=Explainer: Does Trump have the authority to adjourn US Congress?|website=www.aljazeera.com|access-date=2020-04-19}}{{full citation needed|date=November 2024}}</ref>{{better source needed|date=November 2024}}

==Congressional action to prevent recess appointments==
The Senate or House may seek to block potential recess appointments by not allowing the Senate to adjourn under [[Article One of the United States Constitution#Clause 4: Adjournment|Article 1, Section 5, Clause 4 of the Constitution]], which provides that both Houses must consent to an adjournment.<ref>Article 1, Section 5, Clause 4: Adjournment of the Constitution says: "Neither House ... shall, without the Consent of the other, adjourn for more than three days".</ref> This tactic is especially used when either House of Congress is controlled by a different party than that of the president, the Senate or House may seek to block potential recess appointments by not allowing the Senate to adjourn for more than three days, blocking a longer adjournment that would allow recess appointments to be made.<ref>{{cite web|url=http://www.cato.org/pub_display.php?pub_id=13993|title=Obama's Sham Constitutionalism|date=January 5, 2012|website=Cato.org|access-date=December 10, 2016}}</ref>

In order to combat this tactic from Congress, the president can adjourn Congress under Article II section 3 of the Constitution, which states:<blockquote>He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he 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;'' he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. [emphasis added]{{full citation needed|date = November 2024}}</blockquote>

According to Article II Section 2 of the Constitution, the president can appoint or fill up the vacancies that happen during a recess without the Senate's approval, but those positions will end at the end of the next legislative session unless Congress approves the appointment:<blockquote>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.<ref>{{Cite web|url=https://www.law.cornell.edu/constitution/articleii|title = Article II}}{{full citation needed|date = November 2024}}</ref>{{full citation needed|date = November 2024}}</blockquote>

===Legality of intra-session appointments===
{{expert needed|Law|ex2=History|section|reason = the need to move from stray argument points derived from WP editor selections from primary sources like the Federalist papers and law journal articles, to secondary and tertiary textual sources providing the full scope of modern legal scholarly perspective | date = November 2024}} 
As noted by D.R. Stras and R.W. Scott, writing in 2007 in the ''[[Northwestern University Law Review]]'', "there is a robust debate in the scholarly literature about the meaning of the Recess Appointments Clause."<ref name = StrasScott2007>{{cite journal | author1=Stras, David R. |author2=Scott, Ryan W.  |year=2007 | title = Review Essay: Navigating the New Politics of Judicial Appointments [Review of 'The Next Justice: Repairing the Supreme Court Appointments Process' by Christopher L. Eisgruber (Princeton University Press, Princeton 2007)] | journal = Northwestern University Law Review| volume = 102 | issue = 4 | pages = 1869–1917 | location = Chicago, IL | publisher = Northwestern University (NU) | url=https://www.law.northwestern.edu/lawreview/v102/n4/1869/LR102n4Stras&Scott.pdf | access-date = November 19, 2024 | url-status = dead | archive-url = https://web.archive.org/web/20130321023945/https://www.law.northwestern.edu/lawreview/v102/n4/1869/LR102n4Stras&Scott.pdf | archive-date = 2013-03-21 | quote = Although there is a robust debate in the scholarly literature aboutthe meaning of the Recess Appointments Clause, 251 every circuit that hasconsidered the question has held that Presidents possess the power to recessappoint federal judges to Article III courts, including during intrasession re-cesses of the Congress. }}</ref> In [[Federalist No. 67]], [[Alexander Hamilton]] wrote:<blockquote>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.<ref>{{cite web|url=http://constitution.org/fed/federa67.htm|title=The Federalist #67|website=Constitution.org|access-date=December 10, 2016}}</ref></blockquote>

Michael B. Rappaport, writing in 2005 in the ''[[UCLA Law Review]]'', argues for a revised understanding of the meaning of the word "recess" in the Clause, and that it permits appointments "only when an office becomes vacant during a recess and when the... appointment is made during that recess"; he goes on to state that "if an office is vacant while the Senate is in session, the Constitution expects the President to make an [[advice and consent]] appointment at that time."<ref>{{cite journal | author = Rappaport, Michael B. |title=The Original Meaning of the Recess Appointments Clause |journal=UCLA Law Review|volume=52 |number=5 |date=June 2005 |pages=1487–1578 |ssrn=621381 | url =  https://www.uclalawreview.org/wp-content/uploads/2019/09/36_52UCLALRev14872004-2005.pdf | access-date = 19 November 2024 | quote = }}</ref>

Historically, presidents tended to make recess appointments when the Senate was adjourned for lengthy periods.{{citation needed | date = November 2024}} 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.{{citation needed | date = November 2024}}

According to Henry B. Hogue, writing for the [[Congressional Research Service]]:<blockquote>Recent Presidents have made both intersession and intrasession recess appointments [those between sessions/Congresses and those within sessions, respectively]. Intrasession recess appointments were unusual, however, prior to the 1940s, in part because intrasession recesses were less common at that time. Intrasession recess appointments have sometimes provoked controversy in the Senate, and some academic literature also has called their legitimacy into question. Legal opinions have also varied on this issue over time.<ref name=Hogue2015>{{cite web | author = Hogue, Henry B. | date = March 11, 2015 | title = Recess Appointments: Frequently Asked Questions | work = CRS Report—Prepared for Members of Congress | url = https://crsreports.congress.gov/product/pdf/RS/RS21308/23 | access-date = 19 November 2024 | number = RS21308 | pages = 1–10, esp. 2 | location = Washington, DC | publisher =  Congressional Research Service (CRS) | quote = }}</ref></blockquote>

Others argue{{who | date = November 2024}} 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.{{citation needed | date = November 2024}} The view holds{{weasel inline | date = November 2024}} that the current interpretation allows appointments to be made during recesses too brief to justify bypassing the Senate.{{citation needed | date = November 2024}}

Most recently, however, as partisanship on [[Capitol Hill]] has grown,{{citation needed | date = November 2024}}<!--THE FOLLOWING IS NOT AT ALL AN ACCEPTABLE SOURCE FOR THIS PHRASE; CITED IS A HIGHLY TECHNICAL CLUSTER ANALYSIS / NETWORK APPROACH, AND SO IS AN ESOTERIC PRIMARY SOURCE.<ref>{{cite journal|title=Portrait of Political Party Polarization|url=http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=8888768|publisher=[[Cambridge University Press]]|access-date=July 15, 2013|last1=Moody|first1=James|last2=Mucha|first2=Peter J.|journal = Network Science|year = 2013|volume = 1|pages = 119–121|doi = 10.1017/nws.2012.3|s2cid = 3905434}}</ref>--> recess appointments have tended to solidify opposition to the appointee.{{citation needed|date = November 2024}}<!--I'M SORRY, BUT THE FOLLOWING CITATION JUST IS NOT THE SOURCE TO MAKE THIS ARGUEMNT. IT IS A NARROW PRIMARY SOURCE REGARDING JUDICIAL APPOINTMENTS, NOT DEALING WITH PARTISANSHIP, AND ONLY DEVOTING A VERY SMALL PART TO RECESS MATTERS. HE WORDS OPPOSITION AND SOLIDIFY DO NOT EVEN APPEAR IN THE ARTICLE:<ref>{{cite web|title=Navigating the New Politics of Judicial Appointments|url=https://www.law.northwestern.edu/lawreview/v102/n4/1869/LR102n4Stras&Scott.pdf|work=Northwestern University Law Review|publisher=[[Princeton University Press]]|access-date=July 15, 2013|author=David R. Stras|author2=Ryan W. Scott |year=2007}}</ref> CITATION HAS BEEN COMPLETED AND CORRECTED, AND APPERS AT THE OPENING OF THE ARTICLE, FOR WHAT IT DOES CONTAIN.-->

===Obama's challenge ===
Regardless of the Senate continuing to hold [[pro forma]] sessions, on January 4, 2012, [[Barack Obama|President Obama]] appointed [[Richard Cordray]] and others as recess appointments.<ref name=SbCOtbsn>
{{cite web|url=http://www.chicagotribune.com/news/politics/sns-rt-us-financial-regulation-cordraytre80312j-20120104,0,1634538.story|archive-url=https://archive.today/20120108080740/http://www.chicagotribune.com/news/politics/sns-rt-us-financial-regulation-cordraytre80312j-20120104,0,1634538.story|url-status=dead|archive-date=January 8, 2012|title=Stymied by Congress, Obama to boldly seat nominees|access-date=2012-01-05|date=2012-01-04|work=[[Chicago Tribune]]|author1=Clarke, Dave|author2=Matt Spetalnick|name-list-style=amp}}</ref><ref name=DROtNCaCAC>{{cite web|url=http://thecaucus.blogs.nytimes.com/2012/01/04/defying-republicans-obama-to-name-cordray-as-consumer-agency-chief/|title=Defying Republicans, Obama to Name Cordray as Consumer Agency Chief|access-date=2012-01-05|date=2012-01-04|work=[[The New York Times]]|author1=Cooper, Helene|author2=John H. Cushman, Jr.|name-list-style=amp}}</ref><ref name=BSOACC>{{cite web|url= https://www.nytimes.com/2012/01/05/us/politics/richard-cordray-named-consumer-chief-in-recess-appointment.html|title=Bucking Senate, Obama Appoints Consumer Chief|access-date=2012-01-05|date=2012-01-04|work=[[The New York Times]]|last=Cooper|first=Helene|author2=Steinhauer, Jennifer|author2-link=Jennifer Steinhauer}}</ref> [[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.<ref>{{cite web|url=http://thecaucus.blogs.nytimes.com/2012/01/04/obama-tempts-fight-over-recess-appointments/|title=Obama Tempts Fight Over Recess Appointments|first=Charlie|last=Savage|website=Thecaucus.blogs.nytimes.com|date=January 4, 2012|access-date=December 10, 2016}}</ref> 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.<ref>{{cite web|url=https://www.reuters.com/article/us-financial-regulation-cordray-legal-idUSTRE80328G20120105|title=Analysis: Obama consumer chief decision under a legal cloud|date=January 5, 2012|website=Reuters.com|access-date=December 26, 2016|via=Reuters}}</ref>

On January 6, 2012, the [[United States Department of Justice|Department of Justice]] [[Office of Legal Counsel]] issued an opinion regarding recess appointments and pro forma sessions, claiming, <blockquote>"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".<ref>{{cite web |url=https://www.justice.gov/olc/memoranda-opinions.html |title=OLC: Opinions by Date and Title  |access-date=2012-02-02 |url-status=dead |archive-url=https://web.archive.org/web/20120118145608/http://www.justice.gov/olc/memoranda-opinions.html |archive-date=January 18, 2012 }}</ref><ref>{{cite web |url=https://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf |title=Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions |access-date=2012-02-02 |url-status=dead |archive-url=https://web.archive.org/web/20120118153021/http://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf |archive-date=January 18, 2012 }}</ref></blockquote>

===Judicial challenges===
However, this was widely disputed.<ref>{{cite web|url=http://ricochet.com/main-feed/The-Constitution-Is-Clear-On-Recess-Appointments|title=The Constitution Is Clear On Recess Appointments - Ricochet|website=Ricochet.com|date=January 5, 2012 |access-date=December 10, 2016}}</ref><ref>{{cite web|author=The Corner The one and only. |url=http://www.nationalreview.com/corner/287264/richard-cordray-use-and-abuse-executive-power-john-yoo |title=Richard Cordray & the Use and Abuse of Executive Power |work=National Review |date=2012-01-05 |access-date=2016-12-10}}</ref> The first such challenge was announced in April 2012, disputing a [[National Labor Relations Board]] ruling made following the Obama appointments.<ref>{{cite news| url=https://www.washingtonpost.com/blogs/2chambers/post/senate-gop-joining-legal-action-against-obama-recess-appointments/2012/04/17/gIQAuEJbOT_blog.html | newspaper=[[The Washington Post]] | first=Ed | last=O'Keefe | title=Senate GOP joining legal action against Obama recess appointments | date=April 18, 2012}}</ref><ref>{{cite web |url=http://www.legalnewsline.com/news/235859-gop-plans-brief-opposing-obamas-labor-board-appointments |title=GOP plans brief opposing Obama's labor board appointments |access-date=2012-04-17 |url-status=dead |archive-url=https://web.archive.org/web/20120509151356/http://www.legalnewsline.com/news/235859-gop-plans-brief-opposing-obamas-labor-board-appointments |archive-date=May 9, 2012 }}</ref>

On January 25, 2013, in the first circuit case to rule on the validity of the January 4, 2012, appointments, [[David B. Sentelle|Chief Judge David Sentelle]], writing for a unanimous three-judge panel for the [[United States Court of Appeals for the District of Columbia Circuit|U.S. Court of Appeals for the D.C. Circuit]], wrote <blockquote>"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|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."<ref name="sblog.s3.amazonaws.com">{{cite web|url=http://sblog.s3.amazonaws.com/wp-content/uploads/2013/01/01207461695uide694c75117931832.pdf |title=Noel Canning, A Division of the Noel Corporation, Petitioner v. National Labor Relations Board, Respondent |website=Sblog.s3.amazonaws.com |access-date=2016-12-10}}</ref></blockquote>

Also, on March 16, 2013, the [[United States Court of Appeals for the Third Circuit|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.<ref>{{cite web|url=http://www.nationalreview.com/bench-memos/348688/re-third-circuit-ruling-against-presidential-recess-appointment-authority-ammon|title=Re: Third Circuit Ruling Against Presidential Recess-Appointment Authority|website=CNationalreview.com|date=May 17, 2013|access-date=December 10, 2016}}</ref>

On June 26, 2014, in a 9–0 ruling on the case of ''[[NLRB v. Noel Canning]]'', the United States Supreme Court validated this practice of using pro forma sessions to block the president from using the recess appointment authority.  Justice [[Stephen Breyer]] 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.<ref name=9-0>{{cite news |title=Senate 9, President 0 |url=https://www.wsj.com/articles/senate-9-president-0-1403825223 |newspaper=[[The Wall Street Journal]] |date=June 26, 2014 |access-date=September 13, 2021 }}</ref> However, the decision allows the use of recess appointments during breaks within a session for vacancies that existed prior to the break.  Justice Breyer also noted that the president could force a recess if he had enough congressional support: <blockquote>"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."<ref>{{cite web|url=http://www2.bloomberglaw.com/public/desktop/document/NLRB_v_Noel_Canning_No_121281_US_June_26_2014_Court_Opinion|title=Bloomberg Law - Document – NLRB v. Noel Canning, 134 S. Ct. 2550, 189 L. Ed. 2d 538, 199 LRRM 3685, 82 U.S.L.W. 4599 (2014), Court Opinionwebsite2.bloomberglaw.com|access-date=December 10, 2016}}</ref></blockquote>

==See also==
*[[List of positions filled by presidential appointment with Senate confirmation]]
*[[Unsuccessful recess appointments to United States federal courts]]
*[[Federal Vacancies Reform Act of 1998]]
*{{Wiktionary-inline|recess appointment}}

==References==
{{Reflist|30em}}

==Further reading==
* [https://ssrn.com/abstract=956164 Tillman, ''Senate Termination of Presidential Recess Appointments'', 101 '''Nw. U. L. Rev. Colloquy''' 82 (2007).]
*[https://ssrn.com/abstract=959051 Kalt, Response, ''Keeping Recess Appointments in Their Place'', 101 '''Nw. U. L. Rev. Colloquy''' 88 (2007).]
* [https://ssrn.com/abstract=962100 Tillman, ''Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt'', 101 '''Nw. U. L. Rev. Colloquy''' 94 (2007).]
*[https://ssrn.com/abstract=962762 Kalt, ''Keeping Adjournments in Their Place'', 101 '''Nw. U. L. Rev. Colloquy''' 108 (2007).]
* {{Citation |last=O'Keefe |first=Ed |date=January 5, 2012 |title=What is a recess appointment?
 |newspaper=[[The Washington Post]] |at=Federal Eye (washingtonpost.com) |access-date=January 5, 2012
 |url=https://www.washingtonpost.com/blogs/federal-eye/post/what-is-a-recess-appointment/2012/01/04/gIQAA4WCbP_blog.html }}
* [https://fas.org/sgp/crs/misc/RL33310.pdf Recess Appointments Made by President George W. Bush, January 20, 2001- October 31, 2008] [[Congressional Research Service]]
* [https://fas.org/sgp/crs/misc/R42329.pdf Recess Appointments Made by President Barack Obama] [[Congressional Research Service]]

{{United States Congress}}
{{US Constitution}}

[[Category:Article Two of the United States Constitution]]
[[Category:Clauses of the United States Constitution]]
[[Category:Executive branch of the government of the United States]]
[[Category:Presidency of the United States]]
[[Category:Recess appointments| ]]