The Original Meaning of the Recess Appointments Clause

Abstract

This article addresses the proper interpretation of the Recess Appointments Clause. Under the existing interpretation of the Clause, the President has extremely broad authority to make recess appointments. Indeed, the authority is so vast that in my view the principal constraint on the President's recess appointment power is not a legal limitation, but the negative political backlash that extensive use of the power might provoke. I argue, however, that the original meaning of the Recess Appointment Clause actually confers quite limited power on the President and would not permit most of the recess appointments that are currently made. For example, under my view, President Bush's recess appointments of Charles Pickering and William Pryor would not have been constitutional and a President would have difficulty recess appointing a Supreme Court justice who experiences opposition in the Senate.

The language of the Recess Appointments Clause provides that 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. My article makes two basic claims about the original meaning of the Clause. First, I argue that the Clause permits recess appointments only when an office becomes vacant during a recess and when the recess appointment is made during that recess. Thus, if an office was vacant while Congress was in session - either because the vacancy arose during a session or a vacancy that arose during a recess continued into the session - the President could not fill that office with a recess appointment. The prevailing interpretation of the Clause, however, permits the President to make recess appointments so long as the recess appointment is made during a recess, whether or not the vacancy existed when Congress was in session. Thus, the President can always make a recess appointment for any office so long as he waits until there is a recess to do so.

The second claim in the article involves the original meaning of the term recess. I argue that the Constitution permits recess appointments only during an intersession recess - the (typically long) recess between the two one-year sessions of a Congress - and does not permit recess appointments during intrasession recesses - the (typically shorter) recesses taken during a session. Under my view, the President would be able to make recess appointments only during the one intersession recess each year. The existing interpretation, however, allows the President to make recess appointments on average seven times a year, including for intrasession recesses as short as 10 days (and perhaps even shorter). Obviously, the existing interpretation provides the President with greater recess appointment authority than does the original meaning.

Keywords: Recess Appointments Clause, recess appointments

JEL Classification: K10