44 Pages Posted: 12 Jul 2007
The Recess Appointments Clause of the Constitution allows the President unilaterally to fill vacancies in federal offices that occur during Senate recesses. A contentious question in recent years has centered on the type of recess that allows the President to invoke this power. This Note argues that the power should apply to intersession recesses (which occur between two formal sessions of a Senate) but not to intrasession recesses (which occur within a Senate session).
Part I chronicles the history of recess appointments. It highlights the increasing frequency of, and questionable need for, intrasession recess appointments.
Part II examines the text of the Recess Appointments Clause and the intentions of the Framers regarding the scope of the clause and the appointment power in general. It contends that these sources indicate that the President's power to make recess appointments should be limited to intersession recesses.
Part III focuses on interpretations of the clause by actors in the political sphere, namely the Senate and presidential legal advisors. It asserts that such opinions fail to undermine the textual analysis that limits the President's power to intersession recesses.
Finally, Part IV finds that dramatic changes since the time of the Framers weaken the need for the Clause. Because Senate activity continues during the typically short intrasession recesses, unfilled vacancies do not threaten the shutdown of the government. Moreover, statutory alternatives such as succession and holdover provisions keep the government running smoothly even in the event of such vacancies. Because these changes demonstrate how limited the original purposes of the clause have become in today's political environment, courts should confine the recess appointment power to the recess most consistent with the Framers' understanding, the intersession recess.
Keywords: Recess Appointments Clause, recess, intersession, intrasession
JEL Classification: K10, K19
Suggested Citation: Suggested Citation
Carrier, Michael A., When is the Senate in Recess for Purposes of the Recess Appointments Clause?. Michigan Law Review, Vol. 92, No. 7, 1994. Available at SSRN: https://ssrn.com/abstract=999101